Statutes of Liberty: Temporary Protected Status is Ending. What to Do?

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Temporary Protected Status (“TPS,” in legal argot) is one of the zaniest creatures in the Seussian paper-palace of immigration law. If disaster or civil war strikes Country X, the TPS system enables various actors in the Executive Branch to declare that Country X is temporarily unable to receive a wave of deportees from the United States, and, therefore, that the United States will allow potential deportees to Country X to remain here on sufferance. Through that procedure, TPS-holders can receive work permits and temporary safe harbor from deportation.

On the terms of the program, TPS is temporary. In practice, for most people most of the time, TPS has been permanent. TPS-El Salvador was designated during the George Bush presidency — George H.W. Bush, kids! — but has been renewed repeatedly since then by Republican and Democratic administrations alike.

The renewals appear to be over. The Trump Administration recently announced that it will terminate TPS protections for Nicaragua, Honduras and Haiti. Salvadorans, however, are the most numerous beneficiaries of TPS in the United States, and are disproportionately concentrated in our area — and TPS-El Salvador remains intact for now. A decision will be made by January 8, 2018.

So, what happens if TPS-El Salvador is shut down?

The simple answer is that Salvadorans with TPS will revert to the formal immigration status that they had before TPS was granted.

The more complex answer is that Salvadorans will face a list of interesting options. Of those, asylum and family petitions will be the most helpful for most people.

1. Asylum

Under ordinary circumstances, you must apply for asylum within one year of entry into the United States. These are not ordinary circumstances. Under current law, the termination of TPS is an “extraordinary circumstance” which may excuse late filing. That “may” is going to blast tens of thousands of Salvadoran families into asylum offices across the United States — in particular, to the Arlington Asylum Office, where wait times are measured in years.

2. Family petitions

TPS-holders aren’t all the same. Some of them entered the United States without inspection, by walking across the border. Some of them entered the United States with visas which have long since expired. Some of them entered without inspection and then later entered with inspection via a program called Advance Parole. TPS-holders who entered with inspection, either initially or subsequent to their initial entry, may be eligible for family petitions, through relationships (chiefly, marriage and children) which have sprung up in the decades since TPS was announced.

The important thing is to not act too hastily, and — above all — not to rely on the services of an “immigration consultant” or a notary. If you can’t afford a lawyer, my former colleagues at Catholic Charities of the Archdiocese of Washington, or our sister organization in Arlington, will be delighted to help you at a low-bono rate. Please be careful out there.