UPDATE: Termination of Temporary Protected Status for Sudan, Nicaragua, Haiti, and El Salvador: Key Takeaways and Analysis
Legal Sidebari
UPDATE: Termination of Temporary
Protected Status for Sudan, Nicaragua, Haiti,
and El Salvador: Key Takeaways and Analysis
Updated June 8, 2018
UPDATE: Following the publication of this Sidebar, the Department of Homeland Security (DHS)
announced the termination of Temporary Protected Status (TPS) designation for Nepal and Honduras.
DHS had originally designated Nepal for TPS on June 24, 2015, following a severe earthquake in that
country. Honduras was originally designated for TPS on January 5, 1999, in response to devastation
caused by Hurricane Mitch. In its April 26, 2018 statement announcing the termination of TPS
designation for Nepal, DHS declared that conditions in that country have “notably improved,” and
announced an effective TPS termination date of June 24, 2019. In its May 4, 2018 statement regarding
the termination of TPS designation for Honduras, DHS similarly cited improved conditions in that
country, and announced an effective TPS termination date of January 5, 2020.
(In addition, on March 27, 2018, President Trump directed DHS to phase-out Deferred Enforced
Departure (DED), a separate, non-statutory form of discretionary relief, for certain nationals of Liberia,
over a 12-month period until March 31, 2019. Unlike TPS, DED is rooted in the President’s inherent
executive power over foreign relations rather than statutory authority. But like TPS, it permits nationals
of countries experiencing war or instability to remain temporarily in the United States.)
The original post from February 2, 2018, is below.
Recently, the Department of Homeland Security (DHS) announced the impending termination of
Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. Certain
non-U.S. nationals from designated TPS countries, who otherwise might lack the ability to remain in the
United States, are permitted to stay and work in the United States during the period of TPS designation.
Sudan, Nicaragua, Haiti, and El Salvador had been designated for TPS for most of the past two decades
due to unstable or dangerous conditions in those countries. After concluding that the conditions originally
warranting those TPS designations no longer exist, DHS announced dates on which the designations
would no longer be in effect. Consequently, aliens from these countries who had previously been
protected from removal through TPS-based relief might not be able to remain in the United States unless
they have a separate legal basis for their continued presence. This Legal Sidebar examines some of the
Congressional Research Service
https://crsreports.congress.gov
LSB10070
CRS INSIGHT
Prepared for Members and
Committees of Congress
Congressional Research Service
2
key legal takeaways and implications of DHS’s decision to terminate the four countries’ TPS
designations.
Background
Since 1990, federal immigration law has provided a statutory mechanism by which aliens present in the
United States from countries facing armed conflict, natural disaster, or other extraordinary conditions can
temporarily remain and work in the United States. Under Section 244 of the Immigration and Nationality
Act (INA), DHS in consultation with the State Department may designate a country for TPS on one of the
following grounds:
There is an ongoing armed conflict that prevents the safe return of nationals from that
country;
There has been an environmental disaster in the country (such as an earthquake, flood,
drought, or epidemic) that substantially disrupts living conditions in the area affected; the
country is unable to adequately handle the return of alien nationals; and the country has
officially requested TPS designation; or
There are “extraordinary and temporary conditions” in the foreign country that prevent
alien nationals from safely returning (unless the agency finds that permitting the aliens to
remain temporarily in the United States is contrary to the national interest of the United
States).
An alien from a foreign country designated for TPS may potentially be permitted to remain in the United
States for the period in which the TPS designation is in effect, even if the alien had not originally entered
the country lawfully. Although TPS relief does not confer lawful permanent resident (LPR) status or
otherwise provide a permanent legal foothold in the United States, it does provide covered aliens with
certain benefits. For example, an alien granted TPS relief cannot be detained based solely on immigration
status; nor may he be removed from the United States while receiving TPS relief (the alien may still be
subject to removal proceedings, but an order of removal may not be executed). The alien may receive
work authorization valid during the period of the country’s TPS designation and any extensions of that
period. In addition, an alien granted TPS relief may apply for certain other immigration benefits or
protections, such as a nonimmigrant visa and asylum. Reviewing courts have split on whether aliens who
entered the United States without inspection and were thereafter granted TPS relief may be eligible to
adjust to LPR status, with the U.S. Court of Appeals for the Eleventh Circuit agreeing with DHS’s
position that TPS relief does not provide a route to adjustment for aliens who entered the United States
unlawfully, while the appellate courts for the Sixth and Ninth Circuits have taken the opposite view. A
TPS relief recipient may also apply for advance parole in order to travel to and from the United States
(advance parole may also provide some TPS relief recipients outside the Sixth and Ninth Circuits another
avenue to seek adjustment of status). TPS relief recipients must annually register during specified periods
to maintain TPS relief status.
The initial period of TPS designation may last from a period between 6 and 18 months. In the absence of
a determination by DHS that an extension is not warranted, the TPS designation will automatically be
extended an additional 6 months once the initial designation period ends, or either 12 or 18 months if the
DHS Secretary determines that a longer extension is appropriate. On the other hand, if DHS concludes
that the conditions warranting TPS no longer exist, the agency must terminate the TPS designation by
publishing a Federal Register notice. At a minimum, the TPS designation may be terminated no sooner
than 60 days from the publication date of the Federal Register notice. But DHS may also delay the
effective date of termination further to allow for an “orderly transition.” An alien receiving TPS relief
may maintain TPS relief until the effective date that his home country’s TPS designation is terminated.
Congressional Research Service
3
Although TPS, by its terms, is a temporary designation, DHS has repeatedly extended TPS designations
in many instances. Consequently, certain otherwise removable aliens from TPS-designated countries have
been permitted to remain in the United States for lengthy periods. For example, although Nicaragua was
originally designated for TPS in 1999, DHS has extended that country’s TPS period thirteen times,
allowing eligible Nicaraguan nationals to have TPS relief for nearly 20 years. Supporters of this practice
argue that it is an appropriate form of humanitarian relief for persons from countries that continue to
experience unsafe or unstable conditions. Conversely, opponents of TPS extensions argue that employing
TPS for only limited periods is consistent with the program’s original intent to provide a temporary safe
haven rather than a permanent immigration benefit.
From September 2017 through January 2018, DHS successively announced the impending termination of
TPS for Sudan, Nicaragua, Haiti, and El Salvador. In its press statements, the agency explained that it had
determined that the conditions which originally warranted TPS designations for these countries no longer
existed. Subsequently, DHS issued Federal Register notices terminating TPS, and granting 12- or 18-
month grace periods for each country before the terminations would become effective.
Answers to Frequently Asked Questions about the TPS
Terminations
Why is DHS ending TPS for Sudan and when does the termination become effective? Sudan was
originally designated for TPS on November 4, 1997, due to an ongoing civil war and the “extraordinary
and temporary conditions” in that country. In 2011, DHS designated South Sudan (which had seceded
from Sudan and become a new nation in 2011) for TPS on the same basis. Consequently, some Sudanese
nationals who had previously qualified for TPS relief based on Sudan’s designation were eligible to
change their TPS registration based on the new South Sudan designation.
In its October 11, 2017 Federal Register notice terminating TPS for Sudan, DHS concluded that
conditions have sufficiently improved in that country – including on account of reduced violence and
improved access to food and humanitarian aid – to enable the safe return of nationals to most regions of
that country. The most recent TPS periods for Sudan and South Sudan were set to expire on November 2,
2017. Pursuant to the Federal Register notice, the effective TPS termination date for Sudan is November
2, 2018. With respect to South Sudan, however, the TPS designation has been extended to May 2, 2019,
during which time qualifying South Sudanese nationals within the United States may retain TPS relief.
Why is DHS ending TPS for Nicaragua and when does the termination become effective? Nicaragua
was designated for TPS on January 5, 1999, in response to devastation caused by Hurricane Mitch. This
TPS designation was repeatedly extended, with the most recent one set to expire on January 5, 2018. In its
December 15, 2017 Federal Register notice terminating TPS for Nicaragua, DHS cited the completion of
most hurricane recovery efforts and improved social and economic conditions in that country as evidence
that Nicaragua’s TPS designation was no longer warranted. Nicaragua’s effective TPS termination date is
January 5, 2019.
Why is DHS ending TPS for Haiti and when does the termination become effective? DHS originally
designated Haiti for TPS on January 21, 2010, following a strong earthquake in that country. The most
recent TPS period for Haiti was set to expire on January 22, 2018. In its January 18, 2018, Federal
Register notice, DHS stated that the “extraordinary but temporary conditions” caused by the earthquake
no longer exist because the country has made notable progress in its recovery and rebuilding efforts; there
has been a marked decline in the number of displaced people from the earthquake; and the country’s
economy has continued to recover. Accordingly, the agency announced an effective TPS termination date
of July 22, 2019.
link to page 5 Congressional Research Service
4
Why is DHS ending TPS for El Salvador and when does the termination become effective? El
Salvador was originally designated for TPS on March 9, 2001, due to a series of earthquakes in that
country. The most recent TPS period for El Salvador was due to expire on March 9, 2018. In its January
18, 2018 Federal Register notice, DHS cited the completion of reconstruction projects and recovery
efforts in El Salvador; the significant amount of international aid the country has received; an improving
economy; and the country’s ability to repatriate more than 39,000 nationals in recent years as factors
warranting the termination of TPS. The agency thus announced an effective TPS termination date of
September 9, 2019.
Will TPS relief recipients from Sudan, Nicaragua, Haiti, and El Salvador now be subject to
removal? Although DHS announced the termination of TPS designation for Sudan, Nicaragua, Haiti, and
El Salvador, the agency has delayed the effective dates of termination for each country for either 12 or 18
months. The stated purpose for these grace periods is to allow for an “orderly transition”; give TPS relief
recipients an opportunity to explore other immigration relief; and provide Congress a window to consider
legislation allowing TPS relief recipients to remain in the United States. Accordingly, DHS has provided
that existing TPS relief recipients can maintain their TPS through the extended duration of their country’s
TPS period if they re-register during specified 60-day periods (see Table 1 below for more information).
While they retain such status, TPS relief recipients will not be subject to removal.
Upon termination of their respective country’s TPS designation, TPS relief recipients will no longer have
that status and will revert to the same immigration status they had before TPS (unless that status had since
expired or been terminated); or to any lawful immigration status they obtained while registered for TPS
relief (as long as it remains valid on the date a TPS designation terminates). Therefore, some former TPS
relief recipients may be subject to removal on account of their presence in the United States without legal
authorization. The Trump Administration indicated in 2017 its intent to prioritize immigration
enforcement resources towards the removal of aliens who have committed crimes; engaged in fraud or
willful misrepresentation; abused any public benefits program; pose a risk to public safety or national
security; or are subject to a “final order of removal, but have not complied with their legal obligation to
depart the United States.” Many former TPS relief recipients would not fall under these removal priorities
(in fact, the statutory requirements for TPS explicitly bar aliens convicted of any felony or 2 or more
misdemeanors from TPS relief). However, former TPS relief recipients who were subject to a final order
of removal before obtaining relief might be deemed, at least in some cases, to be a priority for removal if
they do not comply “with their legal obligation to depart” the country once their TPS relief status is
terminated.
Nevertheless, some former recipients may meet certain eligibility requirements for other forms of relief,
including asylum, withholding of removal, cancellation of removal, adjustment of status, and deferred
action. Eligibility for these forms of relief depends on an alien’s particular circumstance, and most likely
would not be available to many former TPS relief recipients.
Can TPS relief recipients from Sudan, Nicaragua, Haiti, and El Salvador continue to receive work
authorization during the remaining period that their countries have TPS designations? Despite the
announced termination of TPS designations for Sudan, Nicaragua, Haiti, and El Salvador, current TPS
relief recipients from those countries may continue to receive work authorization pending the effective
date of such terminations. In its Federal Register notices, DHS announced that it was automatically
extending the validity of employment authorization documents (EADs) issued to current TPS relief
recipients for a period of 180 days (60 days for Nicaraguan TPS relief recipients) after the expiration of
their current EAD (but in the case of Sudan, the automatic extension applies only if a TPS relief recipient
timely re-registered for TPS relief and requested a new EAD; and in the case of Nicaragua, the automatic
extension increases to 180 days if the recipient timely re-registers for TPS and requests a new EAD). In
addition, TPS relief recipients whose applications for re-registration and employment authorization are
link to page 5 Congressional Research Service
5
approved will be issued new EADs valid for the duration of time that their countries retain TPS
designations (see Table 1 below for more information).
Can TPS relief recipients from Sudan, Nicaragua, Haiti, and El Salvador still travel outside of the
United States? Generally, a TPS relief recipient who wishes to travel outside of the United States may
apply for advance parole with USCIS. A grant of advance parole permits an alien to leave the United
States and return during a specified period of time. In the absence of advance parole, DHS may withdraw
the grant of TPS relief to an alien who leaves the United States (unless the departure was a “brief, casual,
and innocent absence”). In its notices terminating TPS designations for Sudan, Nicaragua, Haiti, and El
Salvador, DHS provided that those who timely re-register for TPS relief will maintain that status until
their country’s TPS termination date. Therefore, insofar as a TPS relief recipient timely re-registers and
maintains that status, he would likely remain able to apply for advance parole.
Is the decision to end TPS susceptible to legal challenge? INA Section 244(b)(5) provides that there is
no judicial review of DHS’s decision to either designate a country for TPS or to extend or terminate that
designation. On January 24, 2018, the NAACP filed a federal lawsuit in Maryland challenging DHS’s
decision to end Haiti’s TPS designation, claiming that the agency’s action was unlawful because it was
motivated by racial or ethnic discrimination. And on January 25, 2018, a Freedom of Information Act
(FOIA) lawsuit was filed in federal district court in New York City, seeking the agency records that
documented the basis for DHS’s decision to end TPS for Haiti. Further analysis of these and other related
challenges will be forthcoming pending the outcome of the litigation. In the meantime, to date there has
not been a successful challenge to the termination of a TPS designation.
Does Congress play a role in the termination process? In its press releases announcing the termination
of TPS for Nicaragua and El Salvador, DHS called on Congress to find “a permanent solution” for TPS
relief recipients who wish to remain in the United States lawfully. In the 115th Congress, a number of
bills have been introduced that would extend TPS designation for certain countries, or allow long-term
TPS relief recipients to adjust their status to LPR if they meet certain requirements. To date, Congress has
not acted on such legislation. Moreover, even if Members of Congress believe that legislation is
appropriate to enable certain TPS relief recipients to remain in the United States past the date of their TPS
termination, the nature of the rights and privileges that might be conferred by such legislation – e.g.,
whether or not persons granted statutory relief should receive legal immigration status or be eligible for
public benefits – could be subject to differing views and debate.
Table 1. Countries Scheduled to Have TPS Designation Terminated
Scheduled
Expiration
Automatic
Date of Most
Extension of
Validity
Recent TPS
Employment Period of
Original TPS and
Effective
TPS Relief
Authoriza-
Approved
Designation
Employment Date for
Re-
tion
Employment
Date
Authoriza-
TPS
Registration
Document
Authoriza-
tion Period
Termination Period
(EAD)
tion
Sudan
November 4,
November 2,
November 2,
October 11,
Through May
Through
1997
2017
2018
2017 to
1, 2018 if
November 2,
December 11,
applicant
2018
2017
timely re-
registered for
TPS and filed
new EAD
application
Congressional Research Service
6
Scheduled
Expiration
Automatic
Date of Most
Extension of
Validity
Recent TPS
Employment Period of
Original TPS and
Effective
TPS Relief
Authoriza-
Approved
Designation
Employment Date for
Re-
tion
Employment
Date
Authoriza-
TPS
Registration
Document
Authoriza-
tion Period
Termination Period
(EAD)
tion
Nicaragua
January 5,
January 5,
January 5,
December 15,
Generally
Through
1999
2018
2019
2017 to
through March January 5,
February 13,
6, 2018;
2019
2018
through July 4,
2018 if
applicant
timely re-
registers for
TPS relief and
files new EAD
application
Haiti
January 21,
January 22,
July 22, 2019
January 18,
Through July
Through July
2010
2018
2018 to March
21, 2018
22, 2019
19, 2018
El Salvador
March 9, 2001
March 9, 2018
September 9,
January 18,
Through
Through
2019
2018 to March
September 5,
September 9,
19, 2018
2018
2019
Nepal
June 24, 2015
June 24, 2018
June 24, 2019
May 22, 2018
Through
Through June
to July 23,
December 21,
24, 2019
2018
2018
Honduras
January 5,
July 5, 2018
January 5,
June 5, 2018
Through
Through
1999
2020
to August 6,
January 1,
January 5,
2018
2019
2020
Author Information
Hillel R. Smith
Legislative Attorney
Congressional Research Service
7
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
LSB10070 · VERSION 4 · UPDATED