Everything You Need to Know About ‘Temporary Protected Status’ Under Department of Homeland Security

Temporary Protected Status (TPS) is granted by the Secretary of the Department of Homeland Security (Secretary) to eligible foreign-born individuals who are unable to return home safely due to conditions or circumstances preventing their country from adequately handling the return.

When can the Secretary designate a country for TPS?

The Secretary can designate a country for TPS due to:

• Ongoing armed conflict (such as civil war),
• An environmental disaster (such as earthquake or hurricane), or an epidemic, or
• Other extraordinary and temporary conditions.

Who is eligible for TPS?

TPS can be granted to an individual who is a national of a designated country, has filed for status during a specified registration period, and who has been continuously physically present in the U.S. since a designated date.

What are the benefits of TPS?

During a designated period, TPS holders are:

• Not removable from the U.S. and not detainable by DHS on the basis of his or her immigration status,
• Eligible for an employment authorization document (EAD), and
• Eligible for travel authorization.

On April 21, 2021, the U.S. Supreme Court has heard an oral argument on whether individuals who initially entered the United States without permission and subsequently were granted Temporary Protected Status (TPS) are eligible to adjust to lawful-permanent-resident status without leaving the United States. Sanchez v. Mayorkas, No. 20-315. If the individuals must leave the United States, they can become subject to three or 10-year bars to admission.

The brief for the government was filed by the Department of Justice in December 2020, near the end of the Trump administration. Despite the Biden administration’s stated pro-immigration stance, in this case, the government is defending the position that TPS is not a “lawful admission,” effectively limiting the ability of many individuals in TPS to adjust status in the United States.

During oral arguments, the Supreme Court Justices appeared skeptical that approval of TPS could be deemed a lawful admission under current statutory interpretation but, as law, Chief Justice John Roberts noted, the government seemed to be continually “underselling” its case. Indeed, in response to questioning from Justice Brett Kavanaugh, the government said that it would just as soon have the Court decide that their interpretation of the statute was reasonable, but not unambiguously correct. The government also indicated it could change its interpretation in the future.

While President Joe Biden has voiced support for individuals in TPS, and has called for permanent status for these individuals, a decision favorable to the government will shut the door to green cards for thousands of TPS holders for now.

“We need to be careful about tinkering with the immigration statutes as written, particularly when Congress has such a primary role here,” Associate Justice Brett Kavanaugh told a lawyer for the two immigrants – a New Jersey couple from El Salvador – who filed the appeal. “You have an uphill climb, textually speaking.”

The case before the high court concerns Jose Sanchez and Sonia Gonzalez, a married Salvadoran couple who entered the U.S. illegally in the 1990s. They applied for and received TPS after El Salvador suffered a series of earthquakes in 2001.

In 2007 Sanchez got an employment visa through his employer, Viking Yacht Co., and seven years later he sought to use that visa to get what’s known as an “adjustment” to permanent status for himself and his wife. U.S. Citizen and Immigration Services rejected the application in 2015, saying Sanchez was ineligible because he had “never been admitted into the United States.”

The administration says it’s bound by the wording of federal law, which requires green card applicants to have been “inspected and admitted” into the country. The administration says the government has interpreted that statute for 30 years as excluding people who entered illegally, though the policy wasn’t formalized until the Trump era.

“Adjustment of status from within the United States is a privilege that has generally been reserved since 1952 for non-citizens who entered lawfully, not those who merely received temporary protection against removal,” acting U.S. Solicitor General Elizabeth Prelogar argued in court papers.

Sanchez and Gonzalez contend they met the “inspected and admitted” requirement by having been approved for the TPS program. They say the government’s stance would force them to return to El Salvador and apply for immigrant visas there before they could seek permanent status — something they say Congress didn’t intend when it set up the TPS program in 1990.

“Allowing qualifying TPS recipients to adjust status without leaving the United States furthers the statutory purpose of protecting people like petitioners whose native countries are unsafe,” their lawyers argued in court papers. Sanchez and Gonzalez now live in New Jersey and have four sons, the youngest of whom is a U.S. citizen.

Those who opposed Biden at the Supreme Court included nine Democratic members of Congress who filed a brief backing Sanchez and Gonzalez.

So far at the Supreme Court, the Biden administration has made its mark on immigration mostly by rescinding Trump policies the justices had been planning to consider. Those changes prompted the court to dismiss cases over Trump’s border wall, his remain-in-Mexico policy for asylum-seekers, and his tough test for screening out green-card applicants who might become dependent on government benefits.

Changing the TPS policy would have been more complicated given that an appeals court said in the Sanchez case that federal law required the government to reject the green-card applications. The Biden administration inherited the case after the Trump administration appealed to the high court.

The TPS case is an exception to the administration’s “general non-enforcement, almost pro-illegal immigration policy,” said Christopher Hajec, a lawyer with the Immigration Reform Law and critic of the Biden White House. He said the administration’s approach will help safeguard the Homeland Security Department’s ability to adopt reasonable interpretations of federal immigration laws.

Immigrant rights advocates say continued temporary status is a bad fit for people who’ve legally established deep roots in their communities.

DHS is automatically extending the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal for nine months through October 4, 2021, from the current expiration date of January 4, 2021. On March 12, Secretary of Homeland Security Alejandro N. Mayorkas announced the Temporary Protected Status (TPS) designation for Burma for 18 months.

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Amy Ghosh is a practicing lawyer in Los Angeles. She migrated to the U.S. in 1987 and has been married to a (retired) rocket scientist for 35 years. She has two adult children. Before becoming an attorney, she was a biochemist and worked for several well-known hospitals and laboratories. Ghosh continues to be very much in touch with her motherland India and her favorite city Calcutta. She has recently produced a Bengali movie “Urojahaj-The Flight” by acclaimed filmmaker Buddhdeb Dasgupta. Ghosh is continually looking for meaningful opportunity to contribute to the society through her legal and social work.