Members of Congress and various organizations have requested USCIS to consider designating the Philippines for Temporary Protected Status (TPS) due to the devastation brought about by Typhoon Haiyan on November 8, 2013. At the time this article was written, USCIS was still considering the request but this would be a good time to familiarize ourselves with the possibilities and limitations of TPS.
Under INA 244(b)(1), the Department of Homeland Security (DHS) Secretary, after consultation with the appropriate agencies, may designate a foreign country or parts of a foreign country for TPS if: (1) there is an ongoing armed conflict in a foreign country that prevents its nationals from returning safely; (2) there has been an environmental disaster in a foreign country that resulted in substantial but temporary disruption of living conditions in the affected area and rendered the country unable to adequately handle the return of its nationals; or (3) there are extraordinary and temporary conditions in a foreign country that prevent its nationals from returning safely. The initial period of designation is between 6 months to not more than 18 months. This period may be extended until DHS decides to terminate it.
When a country is designated for TPS, the nationals of such country: (a) cannot be removed from the U.S.; (b) can be granted a work permit; and (c) may be granted travel authorization, during the designated period. However, TPS does not provide a path to lawful permanent resident (LPR) status or any other immigration status. Nevertheless, an alien in TPS may apply for LPR status, nonimmigrant status, or any other immigration benefit he may qualify.
One may apply for TPS if he or she: (1) is a national of a country designated for TPS; (2) has been physically present in the U.S. continuously since the effective date of the most recent designation of that country; (3) has continuously resided in the U.S. since the date specified for such country; (4) is admissible; and (5) registers for TPS during the initial registration period announced by public notice. When one fails to register during the initial registration period but meets all other TPS requirements, he may apply for TPS during any extension of his country’s designation if, at the time of the initial registration period: (a) he was in nonimmigrant status or has been granted voluntary departure or any relief from removal; (b) he had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which was pending or under review or appeal; (c) he was granted parole or had a pending request for re-parole; or (d) he was the spouse or child of an alien eligible for TPS.
One does not qualify for TPS if found inadmissible due to: (1) a conviction for a crime involving moral turpitude (CIMT); (2) a conviction for a controlled substance violation; (3) a conviction for 2 or more offenses for which the aggregate prison sentence was 5 years or more; (4) being an illicit trafficker of controlled substance; or (5) national security and related grounds. For all other grounds of inadmissibility, USCIS may waive a TPS applicant’s inadmissibility for humanitarian purposes, to assure family unity, or when it is in the public interest.
Let’s take an example. X is a national of El Salvador, which is a country designated for TPS initially on March 9, 2001. X has been residing in the U.S. since January 2000. He was convicted of theft in June 2000. X meets the physical presence requirement because he has been in the U.S. since at least March 9, 2001. He also meets the residence requirement since Salvadoran TPS applicants are required to have been residing in the U.S. since February 13, 2001 and X has been residing earlier than that. However, due to X’s theft conviction, which is a CIMT, he would not qualify for TPS.
If X does not have any criminal conviction and he registered during the initial registration period that began on March 9, 2001 and ended on September 9, 2002, then he would be granted TPS and work authorization. Since El Salvador’s initial designation, its designation has been extended several times, the last extension of which would expire on March 9, 2015. Thus, if X re-registers during all subsequent re-registration periods, he would maintain his TPS. If he fails to re-register, X would lose his TPS.
If X failed to register during the initial registration period because he was unaware of TPS but he first heard about it in February 2005, he would be able to register for TPS for the first time during the re-registration period from January 7, 2005 to March 8, 2005 because USCIS at that time extended El Salvador’s designation from March 9, 2005 until September 9, 2006. If X filed an asylum application in April 2002, which was during the initial registration period, and this application was still pending then X could register for TPS for the first time in February 2005.
