On March 16, 2022, the Department of Homeland Security (DHS) announced a new 18-month designation for Afghanistan for Temporary Protected Status (TPS) in response to ongoing violent, armed conflict in the country led by Taliban forces. This designation comes less than two weeks after the Secretary of Homeland Security designated TPS for Ukraine in response to Russia’s invasion and military occupation of several cities near Ukraine’s northwestern and southeastern borders.
In addition to other qualifying and disqualifying conditions, as listed by DHS, Afghan and Ukrainian nationals eligible for this designation must have continuously resided in the United States since March 15, 2022, and March 1, 2022, respectively, to be eligible for TPS. Both 18-month designations will go into effect on the publication date of forthcoming Federal Register notices.
Background on TPS
Under the Immigration Act of 1990, the secretary of Homeland Security has the authority to designate a country for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters or extraordinary and temporary conditions. During a designated period, individuals who are TPS beneficiaries, or who are found preliminarily eligible for TPS upon initial review of their cases, are not removable from the United States, can obtain an employment authorization document (EAD) and may be granted travel authorization. Once granted TPS, a beneficiary “also cannot be detained by DHS on the basis of his or her immigration status in the United States.”
TPS designations are made for periods of six to 18 months. While these designations are temporary, the Secretary of Homeland Security has the discretion to renew the status of a TPS-designated country if conflict or extraordinary and temporary conditions in the country persist. When a country is designated for TPS, foreign nationals from those countries who are in the United States when the designation is granted must apply for and pay significant fees in order to be eligible to receive a temporary stay of deportation and temporary work authorization while their home country maintains its TPS designation. These individuals do not have a special or expedited pathway to citizenship, but are not barred from pursuing lawful permanent resident (LPR) status through the normal process.
TPS and the Tree Care Industry
Finding workers has been a long-standing challenge for our industry. While working in arboriculture can be a rewarding career that pays a solid living wage, the physical challenges and inherent dangers of an arborist’s life are not for everyone. In an effort to fill vacant positions, many tree care companies have hired workers here in the United States who are on TPS. There are currently 12 TPS-designated countries, but the majority of the current TPS population employed by the tree care industry is from El Salvador, Honduras, Haiti or Nicaragua. Honduras and Nicaragua were first designated for TPS and have subsequently maintained their status since 1998; El Salvador since 2001; and Haiti since 2011. As such, many of the workers employed by the tree care industry have been working in the U.S. for nearly two decades and have become rooted in their workplaces and communities – contributing billions of dollars in federal, state and local taxes each year.
TPS in limbo
Unfortunately, in 2017 and 2018, DHS announced the termination of TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan. In response, several lawsuits were filed challenging DHS’s decisions on various constitutional and statutory grounds, resulting in preliminary injunctions preventing DHS from terminating the TPS designations for the time being. As of March 2022, the preliminary injunctions remain in effect, and DHS has extended the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal through December 31, 2022.
In the case of the injunction’s reversal upon a “superseding final, non-appealable court order and implementing Federal Register notice,” DHS may terminate the validity of relevant TPS-related documentation at an earlier date. Depending on court orders in the lawsuits, U.S. Citizenship and Immigration Services (USCIS) will “inform TPS beneficiaries when any of these orderly transition periods for beneficiaries of TPS for El Salvador, Haiti, Honduras, Nepal, Nicaragua or Sudan will begin.”
For tens of thousands of individuals who have established careers in the U.S. as TPS beneficiaries, uncertainty regarding TPS extensions for their home countries spells uncertainty for their personal and professional lives. To support these individuals navigating life between two countries, TCIA remains committed to working with Congress to find a solution that will provide TPS beneficiaries with a pathway to remain and continue to work in the U.S.
For updates on TPS-designated countries, please visit www.uscis.gov.
Lara Dunkelberg is a legislative assistant with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.
Want to know more? Reach out to Aiden O’Brien, TCIA’s advocacy & standards manager, at aobrien@tcia.org.
