A legal battle over the future of hundreds of thousands of individuals presently in the United States based upon Temporary Protected Status (“TPS”) continues following the Trump administration’s steps to end TPS for certain individuals.

What is TPS?

The United States provides TPS to nationals of certain countries based upon conditions in the country that temporarily prevent the country’s nationals from returning safely, such as ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. At present, 10 countries are designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. A May 2018 report from US Citizenship and Immigration Services noted that 437,402 individuals held TPS status as of December 31, 2017.The Trump administration has taken steps to end TPS for nationals of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, which account for approximately 98 percent of TPS beneficiaries, but these plans are presently the subject of federal litigation. On October 3, 2018, the US District Court for the Northern District of California enjoined the Department of Homeland Security from implementing the administration’s decision to terminate TPS for nationals of these countries, pending further resolution of the case titled Ramos, et al v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal.). This litigation remains ongoing, and the TPS status of these individuals, as well potentially as their eligibility to remain and pursue resident status as described below, remains in limbo.

Below is a chart of ongoing TPS authorization:

Country TPS Designation Date Current TPS Validity Proposed TPS Termination Date
El Salvador March 9, 2001 January 2, 2020 January 2, 2020, or as long as preliminary injunction ordered by Court in Ramos, et al v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) remains in effect – whichever is later.
Haiti January 21, 2010 January 2, 2020 January 2, 2020, or as long as preliminary injunction ordered by Court in Ramos, et al v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) remains in effect – whichever is later.
Honduras January 5, 1999 January 5, 2020 January 5, 2020
Nicaragua January 5, 1999 January 2, 2020 January 2, 2020, or as long as preliminary injunction ordered by Court in Ramos, et al v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) remains in effect – whichever is later.
Somalia September 16, 1991 March 17, 2020 March 17, 2020
Sudan November 4, 1997 January 2, 2020 January 2, 2020, or as long as preliminary injunction ordered by Court in Ramos, et al v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) remains in effect – whichever is later.
Syria August 1, 2016 September 30, 2019 September 30, 2019
Yemen March 4, 2017 March 3, 2020 March 3, 2020, or as long as preliminary injunction ordered by Court in Ramos, et al v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) remains in effect – whichever is later.

Work Authorization Alternatives for Employers

Employers of TPS beneficiaries with work authorization may be in a position to assist TPS employees with potential long-term work authorization through green card (permanent residency) sponsorship for those who are eligible. Some TPS beneficiaries may have immigration issues in their past that will affect their eligibility for US permanent residence. For instance, many TPS holders entered the United States without inspection by US Customs and Border Protection (i.e., an illegal border crossing), and some worked without authorization in the United States before securing TPS.

To secure permanent residency for these TPS employees, employers generally would be required to conduct a US labor market test for each individual, to determine whether any able, willing, and qualified US workers are available to fill these employees’ positions. Permanent residency sponsorship would be available only if the employer fails to locate such US workers through its labor market test. Of particular importance, therefore, is to determine whether the employer’s normal recruitment processes regularly attract candidates who are qualified US workers (in general, workers who are US citizens or US permanent residents). If so, the position is not likely to be certified for purposes of the green card process.

Employer-based green card sponsorship, therefore, may be a challenge for TPS employees, but worth analyzing and strongly considering for those the company deems critical to its operations.