Temporary Protected Status and Country Designation
April 8, 2024, 12:00-1:00 pm PST (Zoom)
Speakers: Sarah Kahn (CHRCL); Daniel Tse (Advocate, Attorney)
What is TPS?
Temporary Protected Status (TPS) is a temporary immigration status granted to eligible people from designated countries. In 1990 Congress established a procedure (IMMACT 90, Public Law No: 101-649) by which the Attorney General may provide TPS to nationals of a particular country who are in the United States and are unable to return to their homeland due to:
Ongoing armed conflict within the state and, due to that conflict, the return of nationals to that state would pose a serious threat to their personal safety.
An environmental disaster resulting in a substantial, temporary disruption of living conditions, the state is temporarily unable to adequately handle returning nationals and the state therefore requests TPS designation.
Other extraordinary and temporary conditions in the state that prevent nationals from returning safely, unless the Attorney General finds that permitting nationals of the state to remain temporarily is contrary to the national interest of the United States.
Designation
After consultation with the appropriate agencies of the government, the Attorney General (AG) may decide to designate a foreign state or part of a foreign state as eligible for TPS. Notice of the designation is published in the Federal Register, and must include an estimate of the number of nationals of the foreign state who are or will become eligible for TPS as a result of the designation.
During the period for which the Attorney General has designated a country under the TPS program, TPS beneficiaries are not required to leave the United States and may obtain work authorization. However, TPS does not lead to permanent resident status. When the Attorney General terminates a country’s TPS designation, beneficiaries return to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS. Accordingly, if a [person] had unlawful status prior to receiving TPS and did not obtain any status during the TPS period, he or she will revert to that unlawful status upon the termination of that TPS designation.
A TPS designation will be effective for a minimum of 6 months to a maximum of 18 months. Before the end of the TPS designation period, the Attorney General will review the conditions in the designated state and determine (60 days prior to the end of the designation period) whether the conditions that led to the designation continue to be met. Based on this assessment, the TPS designation may be extended for an additional 6, 12, or 18 months. If the conditions that led to the TPS designation are no longer met, the Attorney General will terminate the designation. Designations, extensions, terminations, and other information
regarding TPS are published in the Federal Register.
Adjudicator’s Field Manual, 38.1(b), https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm38-external.pdf
Eligibility
Be a national of a designated country or an [person] with no nationality who last habitually resided in such designated state;
Demonstrate continuous physical presence in the U.S. since the effective date of the
designation;
Demonstrate continuous residency in the U.S. since the date set by the Attorney General;
Be admissible as an immigrant, except provided under 8 CFR 244.3 ;
Not be ineligible under 8 CFR 244.4 ;
Register for TPS during the initial registration period announced in the Federal Register.
§ 244.3 Applicability of grounds of inadmissibility.
Grounds of inadmissibility not to be applied: Paragraphs (4), (5) (A) and (B), and (7)(A)(i) of section 212(a) of the Act shall not render a [person] ineligible for Temporary Protected Status.
(4) “Public charge;” 5(A) “Any [person] who seeks to enter the United States for the purpose of performing skilled or unskilled labor;” 5(B) “Unqualified physicians;” 7(A)(i) a person who is undocumented.
§ 244.4 Ineligible applicants.
An [person] is ineligible for Temporary Protected Status if the [person]:
(a) Has been convicted of any felony or two or more misdemeanors, as defined in § 244.1, committed in the United States, or
(b) Is a [person] described in section 208(b)(2)(A) of the Act.
Ineligible applicants
You may NOT be eligible for TPS or to maintain your existing TPS if you:
Have been convicted of any felony or two or more misdemeanors committed in the United States;
Are found inadmissible as an immigrant under applicable grounds in INA section 212(a),
including non-waivable criminal and security-related grounds;
Are subject to any of the mandatory bars to asylum. These include, but are not limited to,
participating in the persecution of another individual or engaging in or inciting terrorist
activity;
Fail to meet the continuous physical presence and continuous residence in the United
States requirements;
Fail to meet initial or late initial TPS registration requirements; or
If granted TPS, you fail to re-register for TPS, as required, without good cause.
Inadmissibility grounds automatically waived for TPS:
Public charge (INA section 212(a)(4));
Labor Certifications and qualifications for certain immigrants (INA section 212(a)(5));
Aliens present without admission or parole (INA section 212(a)(6)(A));
Stowaways (INA section 212(a)(6)(D));
Student visa violators (INA section 212(a)(6)(G));
Documentation requirements for immigrants and nonimmigrants (INA section 212(a)(7));
Certain aliens previously removed (INA section 212(a)(9)(A));
Aliens unlawfully present (INA section 212(a)(9)(B)); or
Aliens unlawfully present after previous immigration violations (INA section 212(a)(9)(C)).
No waiver is available to TPS applicants for the following grounds of inadmissibility:
1. Crime involving moral turpitude (CIMT under INA section 212(a)(2)(A)(i)(I)) (unless
there is a statutory exception);
A purely political offense;
If you committed only one CIMT, you were under 18 years of age at the time, and
you committed the crime (and were released from confinement), more than 5 years
before your application; or
If you committed only one CIMT for which the maximum possible sentence was
1 year or less of imprisonment, and the actual sentence you received was not more
than 6 months of imprisonment.
Controlled substance violations (INA section 212(a)(2)(A)(i)(II)), however, you may apply for a waiver on this application if your offense was a single offense relating to
simple possession of 30 grams or less of marijuana;
Multiple criminal convictions (INA section 212(a)(2)(B)) (purely political offenses do
not make you inadmissible);
Controlled substance traffickers (INA section 212(a)(2)(C));
General security and related grounds (INA section 212(a)(3)(A));
Terrorist activities (INA section 212(a)(3)(B));
Adverse foreign policy consequences for the United States (INA section
212(a)(3)(C)); Form I-601 Instructions 04/01/24 Page 14 of 20
Immigrant membership in totalitarian party (INA section 212(a)(3)(D)); and
Participants in Nazi persecution, genocide, or the commission of any act of
torture or extrajudicial killing (INA section 212(a)(3)(E)).
244.3(b) - Applying for 601 Waiver
“Waiver of grounds of inadmissibility: Except as provided in paragraph (c) of this section, USCIS may waive any other provision of section 212(a) of the Act in the case of individual aliens for humanitarian purposes, to assure family unity, or when the granting of such a waiver is in the public interest. If an alien is inadmissible on grounds which may be waived as set forth in this paragraph, he or she shall be advised of the procedures for applying for a waiver.” 244.3(b)
“TPS Applicant. If you obtain a waiver in connection with Form I-821, Application for Temporary Protected Status, the waiver is only valid for the TPS application. If
granted, the waiver will apply to subsequent TPS re-registration applications, but not to any other immigration benefit requests.” Form I-601 p. 3.
Firm Resettlement Bar
Applies when "(1) The alien resided in a country through which the alien transited prior to arriving in or entering the United States and— (i) Received or was eligible for any permanent legal immigration status in that country; (ii) Resided in such a country with any non-permanent but indefinitely renewable legal immigration status (including asylee, refugee, or similar status but excluding status such as of a tourist); or (iii) Resided in such a country and could have applied for and obtained any non-permanent but indefinitely renewable legal immigration status in that country." 8 CFR § 208.15(a)(1)
Overcoming the Firm Resettlement Bar
The bar applies unless the person establishes:
That their entry into that country was a necessary consequence of their flight from persecution, that they remained in that country only as long as was necessary to arrange onward travel, and that they did not establish significant ties in that country,
OR
That the conditions of their residence in that country were so substantially and consciously restricted by the authority in the country that they were not in fact resettled.
Derivative Beneficiaries
TPS does not provide status to the children or spouses of the recipient unless the
family member independently qualifies for TPS.
Matter of Duarte-Luna, 26 I&N Dec. 325 (BIA 2014):
Derivative status is not available through TPS;
The continuous physical presence and continuous residence of a parent can NOT be imputed to children for purposes of establishing their eligibility for TPS if they entered the United States as unemancipated Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1021−29 (9th Cir. 2005); Lepe-Guitron v. INS, 16 F.3d 1021, 1025−26 (9th Cir. 1994);
An applicant for TPS who is the child of “an alien currently eligible to be a TPS registrant” may be eligible to receive TPS through late registration. 8 C.F.R. § 1244.2(f)(2)(iv) (2013)
Proof of continuous presence
Employment records such as payroll stubs, W-2 Forms, signed and dated copies of tax returns, and employment verification letters;
Financial records such as bank statements, printed money transfer receipts, printed money orders, utility bills, rental lease agreements;
Medical documentation including appointment notices, medical bills, prescriptions, hospital records;
School records of the applicant or his or her child(ren) (such as report cards, letters, etc.);
Attestations from churches, unions, and other organizations
(Evidence for physical presence is essentially the same as for date of entry and
residence.)
Countries
Afghanistan
Burma (Myanmar)
Cameroon
El Salvador
Ethiopia
Haiti
Honduras
Nepal
Nicaragua
Syria
Somalia
Sudan
South Sudan
Ukraine
Venezuela
Yemen
Processing times
Processing times are approximately as long as the grant of TPS for some countries. This means that people are sometimes detained or unable to work for the entirety of the designation period, even though they are eligible.
Advance Parole
Matter of Z-R-Z-C- (August 2020): This Administrative Appeals Office decision held that a TPS recipient who traveled and returned with TPS advance parole on or after August 20, 2020, was not “paroled” back into the United States. This meant that advance parole no longer cured bars based on entries without inspection for TPS recipients.
Rescinded July 2022: a consistent reading of return through advance parole constituting “inspected and admitted” serves the goals of: “administering immigration laws clearly, lawfully, and consistent with Congress’s intent; ensuring equitable treatment of noncitizens under the immigration laws; applying a uniform policy throughout the United States; promoting family unity; and reducing barriers and promoting access to the legal immigration system.”
New Policy: USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries, but will instead provide a new TPS travel authorization document. This document will serve as evidence of the prior consent for travel contemplated in INA 244(f)(3) and serve as evidence that the bearer may be inspected and admitted into TPS pursuant to MTINA if all other requirements are met.
Daniel Tse
Daniel Tse is the visionary Founder of the Cameroon Advocacy Network and Asylum Taskforce Coordinator at Haitian Bridge Alliance where he spearheads advocacy on behalf of Black migrants. His leadership has been instrumental in securing the designation and re-designation of Temporary Protected Status (TPS) and Special Student Relief Package (SSR) for over 40,000+ Cameroonians residing in the United States.
He holds an esteemed LLM from Chapman University School of Law. Daniel's professional dedication revolves around direct service, impactful advocacy, litigation, comprehensive research, policy reform, rapid response initiatives, and strategic support aimed at empowering Black immigrant and all immigrant communities across the nation. His multifaceted roles as the Asylum Seeker Task Force Coordinator for HBA and the Black Immigrants Bail Fund Coordinator underscores his commitment to effecting tangible change within his community.
Daniel's profound professional journey is deeply rooted in his personal experience as an affected community member. From triumphing in his own asylum case pro-se to providing strategic legal aid and fervently advocating for Black immigrants navigating the inconsistencies of the U.S. immigration system, he embodies a tireless dedication to human rights. His primary focus extends to combating human rights violations endured by Black
immigrants, fostering narrative transformation, and relentlessly pursuing racial justice.
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