A foreign state (or part of a foreign state) may be designated for TPS if within the state (or part of the state):
  • is an ongoing armed conflict that would pose a serious threat to their personal safety; or
  • has been an earthquake, flood, drought, epidemic, or other environmental disaster resulting in a substantial, but temporary, disruption of living conditions in the area affected, the foreign state is unable, temporarily, to handle adequately the return to the state of their nationals, and the foreign state officially has requested designation under this subparagraph; or
  • exist extraordinary and temporary conditions that prevent aliens who are nationals of the state from returning to the state in safety, unless permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.

A list of countries designated for TPS with Federal Register cites indicating the most recent action regarding TPS is contained on the USCIS web site at:

https://www.uscis.gov/humanitarian/temporary-protected-status

Benefits of TPS Designation:
  • A national of a designated foreign state (or in the case of an alien having no nationality, is a person who last habitually resided in such designated state) and who meets certain regulatory requirements may be granted temporary protected status in the U.S. by USCIS in the exercise of discretion. The decision to grant TPS shall be evidenced by the issuance of an alien registration document (Special I-94) or employment authorization document for those who apply for one.
  • During TPS, the foreign national is authorized to be employed in the U.S., shall not be removed from the U.S. and shall not be detained by the Attorney General on the basis of the alien’s immigration status in the United States.
  • If a foreign national’s state is designated at the time of initiation of a removal proceedings, the AG shall promptly notify the alien of the availability of TPS, in a form and language that the foreign national can understand.
  • A foreign national who can establish a prima facie case of eligibility (established with the filing, after the effective date of designation, of a completed application for Temporary Protected Status containing factual information that if unrebutted will establish a claim of eligibility) for TPS but for the fact that the period of registration under has not begun, until the alien has had a reasonable opportunity to register during the first 30 days of such period (if application was filed before registeration period with a fee, the fee must be paid or a waiver of fee requested within the first 30 days of the registeration period), is authorized to be employed in the U.S. and shall not be removed from the U.S. Temporary treatment benefits shall be evidenced by the issuance of an employment authorization document. 
  • Until a final determination on a TPS application is made, a prima facie eligible applicant is authorized to be employed in the U.S. and shall not be removed from the U.S
  • A foreign national cannot be denied temporary protected status based on their immigration status or  require as a condition of being granted TPS to relinquish nonimmigrant or other status or to execute any waiver of other rights under this Act. The granting of TPS is not inconsistent with the granting of nonimmigrant status. TPS is considered maintenance of lawful nonimmigrant status for the purposes of adjustment and change of status.
  • A TPS grantee may travel abroad with the prior consent. 
To be eligible TPS applicants must:
  1. have been continuously physically present in the United States since the effective date of the most recent designation of that state
  2. have continuously resided in the United States since such date as the Attorney General may designate.
  3. be admissible as an immigrant
  4. register (properly file a completed application, in accordance with the form instructions, the applicable country-specific Federal Register notice that announces the procedures for TPS registration or re-registration and with proper fee as determined at the time of designation) for the temporary protected status under this section during a registration period (initial registration period, or any subsequent extension of such designation if at the time of the initial registration period: The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal; The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal; The applicant is a parolee or has a pending request for reparole; or The applicant is a spouse or child of an alien currently eligible to be a TPS registrant, or has filed an application for late registeration within 60 days of expiration conditions creating eligibility for registeration during extensions of deisgnation) of not less than 180 days. USCIS may, for good cause, accept and approve an untimely registration request. The 60-day filing requirement does not apply to late filing by spouses or children as a child does not have to file within 60 days of “aging out” and the child’s minor status is measured at the time of the initial filing by the parent and not the late filing. Those who were not in or seeking some valid status when their country was originally designated for TPS and who did not register by the initial registration deadline have lost eligibility for TPS and may not register even during an extended designation period, and they can only qualify to register if their country is “re-designated ”(not merely extension of designation)
An Applicant is ineligible for TPS if:
  1. S/he has committed a felony (a crime committed in the U.S., punishable by imprisonment for a term of more than one year, regardless of the term such alien actually served, if any, except: When the offense is defined by the State as a misdemeanor and the sentence actually imposed is one year or less regardless of the term such alien actually served, the crime shall be treated as a misdemeanor) or two or more misdemeanors (note: any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a misdemeanor) in the U.S.  
  2. S/he has ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
  3. S/he has been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
  4. There are serious reason to belive the Applicant has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;
  5. Reasonable grounds exist for beliving the Applicant is a danger to the security of the United States;
  6. concerns related to security and/or terrorism exist
  7. S/he has firmly resettled in another country prior to arriving in the United States.
The following inadmissibility grounds do not apply to TPS applicants:
  1. Labor certification requirement for those seeking to work in the U.S.
  2. Qualifications required of those seeking work in the U.S. as physicians or healthcare workers.
  3. Immigrant intent without appropriate documentation for eligibility to be admitted as an Immigrant.
TPS Applicants can apply to have all grounds of inadmissibility except for the following waived (on humanitarian, family unity, or public interest grounds): 
  1. Criminals bars to admissibility.
  2. Drug offenses, except for a single offense of simple possession of 30 grams or less of marijuana
  3. National security and participation in the Nazi persecutions or those who have engaged in genocide).
TPS shall be withdrawn if the foreign national : 
  1. was not in fact eligible for TPS
  2. has not remained continuously physically present in the United States from the date the of being granted TPS.
  3. fails, without good cause, to register annually, within 30 days before the the end of each 12-month period after the granting of TPS.
A foreign nation shall be not be considered to have failed to maintain continuous:
  • physical presence in the United States by virtue of brief, casual, and innocent absences (meaning each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence; the absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and the purposes for the absence from the United States or actions while outside of the United States were not contrary to law.)
  • physical presnece in the U.S. if permisson to travel was obtained from USCIS before departure.
  • residence in the United States by reason of a brief, casual, and innocent absence or due to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.
Evidence required by Regulations: 
  • Documentation required in the instructions.
  • USCIS may require proof of unsuccessful efforts to obtain documents claimed to be unavailable.
  • If any required document is unavailable, an affidavit or other credible evidence may be submitted.
  • Evidence of identity and nationality must be provided, if available. Acceptable primary evidence in descending order of preference may consist of: (i) Passport;(ii) Birth certificate accompanied by photo identification; and/or (iii) Any national identity document from the alien’s country of origin bearing photo and/or fingerprint, including documents issued by embassy or consulate of designated country in the U.S. Per sections of the AFM incorporated in the USCIS policy manual, minor children who are of school age (5 to 10 years old) may use school identity documents. School pictures with names of students listed are acceptable. Children who are under the age of 5 may use their birth certificate along with additional evidence (such as immunization records containing the child’s name and a parent’s signature) to establish identity.
  • If Evidence of identity and nationality is unavailable, one must provide an affidavit showing proof of unsuccessful efforts to obtain such identity documents, explaining why the consular process is unavailable, and affirming that the Applicant is a national of the designated foreign state. A personal interview before an immigration officer shall be required for applicants who fails to provide documentary proof of identity or nationality. Failure to appear for a scheduled interview, without good cause will result in a denial of the Application for Abandonment. Such failure shall be excused if the the notice of the interview was not mailed to the applicant’s most recent address provided to the USCIS. During this interview, the applicant may present any secondary evidence that he or she feels would be helpful in showing nationality. Exmaples of secondary evidence include: Nationality documentation, such as a naturalization certificate, even if it does not have photograph and/or fingerprint; baptismal certificate if it indicates nationality or a parent’s nationality; Copies of school or medical records if they have information supporting claim of being a national from a country designated for TPS; Copies of other immigration documents showing nationality and identity; Affidavits from friends or family members who have close personal knowledgeof the date and place of Applicant’s birth and parents’ nationality. The person making the affidavit should include information about how s/he knows Appliant or is related to Applicant, and how s/he knows the details of the date and place of birth and the nationality of parents. The nationality of parents is important if Applicant is from a country where nationality is derived from a parent.
  • Per the AFM If evidence submitted reveals criminal charges, and it cannot be determined whether the charges are misdemeanors or felonies, and there are no court dispositions available, the applicant may be scheduled for an interview at the appropriate district office.
  • Evidence to establish proof of continuous residence in the U.S.  during the requisite period of time may consist of any of the following:
  1. Employment records (pay stubs, W-2 Forms, certification of the filing of Federal, State, or local income tax returns; letters from employer(s) or, if the applicant has been self-employed, letters from banks, and other firms with whom he or she has done business. In all of the above, the name of the Applicant and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be in affidavit form, and shall be signed and attested to by the employer under penalty of perjury. Such letters from employers must include: a. Applicant’s address(es) at the time of employment; b. Exact period(s) of employment; c. Period(s) of layoff; and d. Duties with the company. The AFM requires employer letters to be on company letterhead, and have the original signature of the employer.
  2. Rent receipts, utility bills (gas, electric, telephone, etc.), receipts, or letters from companies showing the dates during which the applicant received service;
  3. School records (letters, report cards, etc.) from the schools that the applicant or his or her children have attended in the U.S showing name of school and period(s) of school attendance;
  4. Hospital or medical records showing medical treatment or hospitalization of the applicant or his or her children, showing the name of the medical facility or physician as well as the date(s) of the treatment or hospitalization;
  5. Attestations by churches, unions, or other organizations of the applicant’s residence by letter which: a. Identifies Applicant by name; b. Is signed by an official whose title is also shown; c. Shows inclusive dates of membership; d. States the address where applicant resided during the membership period; e. Includes the seal of the organization impressed on the letter or is on the letterhead of the organization, if the organization has letterhead stationery; f. Establishes how the Attestor knows the Applicant; and g. Establishes the origin of the information being attested to.
  6. Additional documents to support the applicant’s claim, may include: a. Money order receipts for money sent in or out of the country; b. Passport entries; c. Birth certificates of children born in the U.S; d. Bank books with dated transactions; e. Correspondence between the applicant and other persons or organizations; f. Social Security card; g. Selective Service card; h. Automobile license receipts, title, vehicle registration, etc; i. Deeds, mortgages, contracts to which applicant has been a party; j. Tax receipts; k. Insurance policies, receipts, or letters; and/or; .l. Any other relevant document such as bank statements, printed money transfer receipts, printed bills of sale.
  • Evidence for physical presence is essentially the same as for date of entry and residence.
  • Applicants have the burden of establishing eligibility for  a waiver of inadmissibility, and that they do not fall under any of the classes ineligible for TPS. 
  • Evidence of admission for lawful permanent residence or nonimmigrant status must be submitted by the Applicants, who filed to register during the initial registration period and only registered during a subsequent extension of designation.
  • Sufficiency of evidence will be judged according to its relevancy, consistency, credibility, and probative value. To meet his or her burden of proof the applicant must provide supporting documentary evidence of eligibility apart from his or her own statements.
  • Documentation requested by USCIS must be submitted (arguably such request must comply with a reasonable interpretation of the statute). Failure to timely respond to a request for information, without good cause will result in a denial of the Application for Abandonment. Such failure shall be excused if the request for information was not mailed to the applicant’s most recent address provided to the USCIS.
RFEs, Denials, Appeals & Removal Proceedings.

USCIS per policy will generally send a Request for Evidence (RFE) to the applicant or petitioner, but may deny outright without RFE on a case-by-case basis upon obtaining supervisory concurrence.

USCIS has established a 120-day waiting period from the date of fingerprint scheduling to allow applicants to submit fingerprints. When an applicant fails to appear for fingerprints, or a response is not received within that 120-day period, and the applicant has otherwise not advised the USCIS of a change of address or requested that he or she be rescheduled, the case may be denied for abandonment. 

An initial decision to deny TPS, a waiver of inadmissibility, or temporary treatment benefits should:

  • be in writing served in person or by mail to the Applicant’s most recent address provided to USCIS 
  • state the reason(s) for the denial,
  • include written notice of right to appeal.
  • employment authorization shall terminate upon notice of denial or at the expiration of the employment authorization document, whichever occurs later.

If an appeal is filed, the administrative record shall be forwarded to the AAO for review and decision.

  • If the basis for the denial of the TPS constitutes a ground for deportability or inadmissibility which renders the Applicant  ineligible for TPS or inadmissible, the decision shall including a charging document listing such ground(s).
  • If a charging document is issued, the Applicant shall not have the right to Appeal the USCIS decision denying TPS as provided. However, the decision should inform the Applicant of right to a de novo determination of eligibility for TPS in removal proceedings.

If an appeal is dismissed, the decision must state the reasons for dismissal.

  • If the appeal is dismissed on appeal the decision shall also apprise the Applicant of right to a de novo determination of eligibility for TPS in removal proceedings
  • If the appeal is dismissed, USCIS may issue a charging document, if none has been filed with the Immigration Court.
  • If a charging document has previously been filed or is pending before the Immigration Court, either party may move to re-calendar the case after the administrative appeal is dismissed.

If an application is renewed or appealed with BIA in removal proceedings or pending admistrative appeal with AAO ( note AAO is without authority to review a denial of TPS while person is in removal proceedings but the filing of a charging document does not preclude a motion to reopen or reconsider a denial of TPS before USCIS.), Employment Authorization will be extended during the pendency of the renewal/appeal.

An Appliant determined by USCIS to be deportable or inadmissible upon grounds making the Applicant ineligible for TPS may be detained pending removal proceedings.

A foriegn national from a designated country who is in removal proceedings must be informed of the opportunity for TPS and must be released from detention if s/he appears eligible for TPS. An Immigration Judge may adjudicate the TPS application or administratively close proceedings (IJ cannot terminate proceedings on account of TPS) for USCIS to adjudicate TPS, but the court may choose to proceed with removal proceedings to conclusion, with any removal order stayed during the time the alien is in TPS status.

Upon termination of the country’s designation, TPS status is lost and the foriegn national becomes subject to removal unless he can establish eligibility for some other status before the termination, and therfore should apply to change to some other status (if eligible) before the TPS status expires, and ideally should have such a plan for an alternate status or permananet residnce well before the country is likely to lose TPS designation.