Extract from the NAFSA Adviser's Manual 360

Practice Note

Individuals seeking advice on TPS eligibility, whether they should apply for TPS if they do qualify, extensions of TPS, travel and employment while on TPS, TPS and the maintenance of nonimmigrant status, and transitions out of TPS, should be referred to an experienced immigration lawyer or community immigration organization. The points in this section are for informational purposes only, and are not meant to be legal advice.

Sources

Links to the USCIS TPS web page for countries designated for TPS where Federal Register notices have been published:

Notes:

Ukraine. On April 19, 2022, USCIS published a Temporary Protected Status (TPS) notice for certain citizens of Ukraine. Federal Register notice published at 87 FR 23211 (April 19, 2022). "This designation allows eligible Ukrainian nationals (and individuals having no nationality who last habitually resided in Ukraine) who have continuously resided in the United States since April 11, 2022, and who have been continuously physically present in the United States since April 19, 2022 to apply for TPS." The 18-month designation period is effective on April 19, 2022 through October 19, 2023. The Federal Register notice provides eligibility conditions and instructions for applying for TPS and an Employment Authorization Document.

Afghanistan. On May 20, 2020 USCIS published a Temporary Protected Status (TPS) notice in the Federal Register for certain citizens of Afghanistan. The Department of Homeland Security (DHS) had announced on March 15, 2022 that Afghanistan would be designated for Temporary Protected Status (TPS) for 18 months, through November 20, 2023. The designation will not go into effect until the Federal Register notice is published on May 20, 2022. The DHS announcement states that "TPS will apply only to those individuals who are already residing in the United States as of March 15, 2022, and meet all other requirements, including undergoing security and background checks. Those who attempt to travel to the United States after March 15, 2022, will not be eligible for TPS... The 18-month designation of TPS for Afghanistan will go into effect on the publication date of the forthcoming Federal Register notice." The Federal Register notice provides eligibility conditions and instructions for applying for TPS and an Employment Authorization Document.

TPS: Temporary Protected Status

Congress created a limited remedy called Temporary Protected Status (TPS) to address the needs of people whose countries are going through emergency situations such as famine, natural disaster, and civil war.

TPS can be granted if the Secretary of Homeland Security makes a specific finding that:

  • There is an ongoing armed conflict within the state and, due to that conflict, return of nationals to that state would pose a serious threat to their personal safety;
  • The state has suffered an environmental disaster resulting in a substantial, temporary disruption of living conditions, the state is temporarily unable to handle adequately the return of its nationals, and the state has requested TPS designation; or
  • There exist other extraordinary and temporary conditions in the state that prevent nationals from returning in safety, unless permitting nationals of that state to remain temporarily is contrary to the national interest of the United States.

After a country is designated for TPS by DHS, USCIS must issue a Federal Register notice to implement it, and an eligible individual must apply for TPS pursuant to the instructions in the notice. If USCIS grants TPS to the applicant, he or she may remain in the United States for the duration of the TPS grant. If DHS extends the TPS designation in the future, the individual must apply for an extension of his or her TPS.

TPS is a temporary status. If a country's designation expires without the Secretary of DHS renewing the designation, the individual's TPS expires.

TPS does allow employment authorization on an EAD card obtained by filing Form I-765. This work permit has no restrictions as to kind of work or hours and is limited only by the duration of the TPS grant. TPS also permits full or part time study.

  • Find lists of all countries that have been designated for TPS, with links to the actual Federal Register notices designating, extending, or terminating the designations of those countries, on the Executive Office for Immigration Review's (EOIR) web site.
  • The USCIS website also has a good description of TPS and how to apply for it.

DHS usually establishes a designation period of a few months or up to a year and a half for TPS, and reviews the designation periodically to determine if it should be ended, reduced, or extended. INA 244(b)(3)(B) requires DHS to terminate TPS designation for a country when the conditions in that country that required TPS no longer exist.

The TPS designation notice in the Federal Register sets forth the procedures for applying for TPS and TPS-related benefits such as employment authorization.

TPS and nonimmigrant status

The Immigration and Nationality Act provides that TPS is not inconsistent with maintaining nonimmigrant status:

INA 244(a)(5) [8 USC 1254a]

(5) Clarification. - Nothing in this section shall be construed as authorizing the Attorney General to deny temporary protected status to an alien based on the alien's immigration status or to require any alien, as a condition of being granted such status, either to relinquish nonimmigrant or other status the alien may have or to execute any waiver of other rights under this Act. The granting of temporary protected status under this section shall not be considered to be inconsistent with the granting of nonimmigrant status under this Act.

For example, an F-1 student who maintains the terms and conditions of his or her F-1 status during TPS should be considered to have remained in and continue in F-1 status at the end of TPS. However, a nonimmigrant who wishes to maintain nonimmigrant status while on TPS must abide by all the terms and conditions of that status.

Practice Note

Although they are often established around similar conditions in a country, Temporary Protected Status (TPS) and Special Student Relief (SSR) are very different benefits (see NAFSA's page on the basics of Special Student Relief). One of the most important distinctions is that TPS does not include any reduced course load component for F-1 students. Only SSR contains that component. And so, if an F-1 student wishes to maintain F-1 status while under TPS, the student must continue to pursue a full course of study, unless the student has also been approved for a standard RCL under the regular F-1 regulations, or for an SSR RCL under an unexpired SSR notice for his or her country.

8 CFR 244.10(f)(2)(iv) and a parallel statutory provision at INA 244(f)(4) [8 USC 1254a(f)(4)] also state that,

"For the purposes of adjustment of status under section 245 of the Act and change of status under section 248 of the Act, the alien is considered as being in, and maintaining, lawful status as a nonimmigrant while the alien maintains Temporary Protected Status."

For example, while in TPS a person might find a job with an employer who is willing to file an H-1B petition on his or her behalf, and the person may decide (under advice of counsel) to apply to change status from TPS to H-1B. Note, however, that the U.S. Supreme Court held that the granting of TPS does not constitute an admission or parole into the United States for purposes of eligibility for adjustment of status. See Sanchez v. Mayorkas (06/07/2021). Again, this is an area where noncitizens should obtain advice from an experienced immigration lawyer, especially if they were out of status at the time they obtained TPS.

Practice Note

Individuals seeking advice on TPS eligibility, whether they should apply for TPS if they do qualify, extensions of TPS, travel and employment while on TPS, TPS and the maintenance of nonimmigrant status, and transitions out of TPS, should be referred to experienced immigration counsel. The points in this section are for informational purposes only, and are not meant to be legal advice.

Use of TPS EAD and maintenance of nonimmigrant status

Temporary Protected States itself and TPS employment are separate benefits. There is some question about what effect, if any, accepting TPS employment has on maintenance of nonimmigrant status. Advising students on this topic, and TPS in general, should be handled by an experienced immigration lawyer.

On August 12, 2015, USCIS forwarded to NAFSA a set of FAQs that addressed the topic of the effect of using a TPS-issued EAD on a concurrently-held nonimmigrant status, but this FAQ was never published on the USCIS website:

USCIS FAQ: Statelessness and the Ability to Work for Joint F-1/TPS

1) Can someone with a non-immigrant status (e.g. F-1, B-2, etc.) apply for TPS? If so, will having or using a TPS-related EAD affect his or her other status?

Yes, a person with F-1, B-2, or any other nonimmigrant status may apply for and receive TPS. The individual can continue to hold both statuses, as long as he or she remains eligible for both. For example, if an F-1 (student) applies for and obtains TPS, but he or she continues to abide by all of the F-1 eligibility requirements, he/she can continue to maintain F-1 status and simultaneously hold TPS. Any individual who applies for and is granted TPS must continue to comply with the separate eligibility requirements of all other statuses (e.g., F-1, H-1B) that he or she seeks to maintain.

It is up to the individual to know and understand the requirements of all statuses he/she holds or is seeking to obtain and/or maintain. Receiving TPS or a TPS-related EAD does not alter any rules limiting employment for certain nonimmigrants, such as F-1 students or B-2 visitors. Before someone holding both nonimmigrant status and TPS chooses to work using a TPS-related EAD, he or she should carefully consider whether that employment could violate the terms of the nonimmigrant status, potentially resulting in violation of the nonimmigrant status. F-1 students who are considering working on a TPS-related EAD may want to talk with their Designated School Official (DSO) and/or an immigration attorney to discuss how employment could affect their F-1 status. We note that students who are experiencing severe economic hardship as a result of unforeseen circumstances may follow the usual process to request off-campus employment authorization due to the hardship by filing an I-765, Application for Employment Authorization. Recognizing the effects of the earthquakes in Nepal, USCIS has announced that it will work to expedite the adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students from Nepal experiencing severe economic hardship.

SEVP had also implied in it's 2010 Policy Guidance 1004-06  (relating to special student relief benefits for Haitian students) that use of a TPS EAD for employment beyond the scope of F-1 employment regulations can adversely affect F-1 status. NAFSA challenged this interpretation with SEVP in its 2010 comments to the SEVP policy guidance.

However, please note that DHS has not issued guidance instructing DSOs to terminate SEVIS records for F-1 students who have worked on a TPS EAD. Students with questions or issues regarding the impact of TPS and use of TPS benefits should consult an experienced immigration lawyer.