If you are following TPS in the headlines, you probably aren’t surprised by the recent announcement ( on March 16, 2022, see https://www.dhs.gov/news/2022/03/16/secretary-mayorkas-designates-afghanistan-temporary-protected-status) that Afghanistan has been Designated; we’re still waiting for the Federal Register to publish the announcement. If you’re new to the TPS conversation and all of that was Greek, here’s the basics:
- TPS looks backwards. If you are?in the United States?by a certain date, then you are eligible to apply for TPS. That is called the “Presence Date.” There are other requirements, but the Presence Date is the most important one. For Afghanistan, it is yesterday, March 15, 2022.
- TPS can be combined with other Immigration Benefits, like Nonimmigrant Visas. In the case of Afghanistan, it’s safe to say that most of the TPS population will be in the US under Humanitarian Parole. TPS is like adding Whipped Cream to your coffee. It’s usually better that way.
- TPS is?not?a pathway to citizenship or even permanent residence. If you qualify to apply for permanent residence in some other way, you may file for a Green Card through a normal Adjustment of Status. But if the only benefit you have is TPS, that does not qualify you to adjust your status to Permanent Resident. We don’t agree with that, and we’re not alone. But as far as we can tell so far, there is no political will in DC to improve TPS this way. The President’s Immigration Reform Bill has been in Congress since January 2020, and it contains provisions for this. So, it is a part of reform talk.
- TPS allows you to apply for Employment Authorization and Advance Parole. What are those? Employment Authorization means what it says, you are legally authorized to work in the US. Be careful. If you have another status combined with TPS that does?not?allow you to work, such as an F Visa for Students, then working while authorized under TPS will violate your underlying status. You will lose it. You get to keep TPS though. Advance Parole means you have permission to reenter the US after leaving the Country. It is commonly referred to as a “Travel Permit.”
- You can file for Employment Authorization?and?Advance Parole at the same time you apply for TPS. There seems to be some question among immigration attorneys about whether you can file for all three at the same time. You’re here for our answer: You can. We’ve done it.
- In normal times, it takes 6 to 7 months to receive a card (“Combo Card,” EADAP, EAD — “Employment Authorization Document,” or AP Card as it may be called) in the mail authorizing you to work and travel freely. At the moment,?there is considerable backlog in the Employment Authorization filings. The only solution is patience. Although there is a public outcry for a way to expedite the process, there is no indication that USCIS intends to offer Premium Processing for TPS or ancillary filings.
- TPS gives you lawful status. It also stops the clock on accruing Unlawful Presence, pauses removal proceedings, and prevents Deportation. Removal questions tend to get complicated very quickly. If you’re in this situation, a personal consultation with an experienced attorney is the best way to get answers. But in general, TPS will help you assuming you qualify.
- TPS is not an invitation to come to the US. It is a commitment to foreign nationals who are already here in the US. The best example to illustrate this strategy is a student whose country was designated before graduating. Anyone in the US getting an education will not be expected to go home to a humanitarian disaster zone. TPS is an invitation to ride out the storm in the US. It is a great way to take time to adjust your immigration strategy.
- TPS is designated for a finite amount of time, usually 18 months at a time (which is the maximum).
- TPS is often redesignated for many years. Some TPS countries have been on the list since the 90s.
- When you have TPS, you must reapply for it when it expires (assuming your home country was redesignated). Count on having to reapply every 18 months. That’s how it works. Spend that time developing a long-term immigration strategy. Allow TPS to be what it is: a short-term solution.
- Most Presidents have only allowed a short period of time to apply for TPS. This caused administrative bottlenecks where USCIS was flooded with applications within the space of weeks. President Biden has allowed TPS applicants to take the entire 18 months to apply. This is something that is at the discretion of the President. Because this is the exception to the rule, be sure you do not wait too long to apply for TPS. Also consider the fact that because you have more time to apply, it is more important (to USCIS) that you submit a complete and accurate application the first time. All of these points are excellent reasons to hire an attorney to handle this for you.
- Here are the currently designated TPS countries: Afghanistan, Burma (Myanmar), El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Ukraine, Venezuela, and Yemen.
NERO Immigration Law, P.L. endorses this TPS designation for Afghanistan. Furthermore, we applaud President Biden’s generous use of both TPS and Humanitarian Parole. These have become the two most-used Immigration Tools in his presidency so far. It’s a good start. But eventually the US Government will need to find a more long-term solution. Without real Immigration Reform, the President is only punting this issue to his successors, who are just as likely to be immigration hardliners as they are to be as moderate as the Status Quo is.
For Afghans, TPS will most likely be used as a bridge from Humanitarian Parole to whatever the future has in store. There is talk of passing a so-called “Afghanistan Adjustment Act” modeled after our policy toward Cuba. This is certainly something we believe in as well. The future of this initiative is unclear right now. There is a lot about US Immigration Policy that needs fixing. The President’s focus is finite; some bills are zero sum with others; political capital limits what a President can get done. In the meantime, Afghans in the U.S. have at least the next 18 months to watch this issue unfold. It is very unlikely that President Biden’s administration will let TPS expire in only 18 months, though. A long-term solution for Afghans is critical to the success of our commitment to these people whom we have invited into the fold.
Questions? Contact us at 305-351-1079 or [email protected]
