This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
Temporary Protected Status is supposed to be temporary. Congress built it that way on purpose. Congress also built it to be predictable, so that the people who rely on it, and the employers who hire them, know where they stand. Congress also did that on purpose. The statute sets deadlines and requires the government to publish its decisions.
In September, the unstoppable force of TPS elimination met the immovable object of “Here come the midterms!” and the Trump Administration simply blinked, but in such a way that nobody will be happy: neither the federal judiciary, nor immigration hawks, nor, God knows, TPS beneficiaries themselves.
How TPS is supposed to work
The TPS statute, 8 U.S.C. § 1254a, is not complicated. At least 60 days before a country’s designation expires, the Secretary of Homeland Security must review conditions in that country. He must then decide whether to extend or terminate the designation, and publish that decision in the Federal Register. A termination cannot take effect until at least 60 days after that notice is published.
Congress also anticipated a Secretary who doesn’t get around to deciding. Here is the text, in relevant part (our highlights in bold):
If the Attorney General does not determine under subparagraph (A) that a foreign state no longer meets the conditions for designation under paragraph (1) by the time required under such subparagraph, the period of designation of the foreign state is extended for an additional period of 6 months (or, in the discretion of the Attorney General, a period of 12 or 18 months).
El Salvador: 25 years, and then nothing
El Salvador has been designated for TPS since the earthquakes of 2001. Its most recent extension, published in January 2025, ran through September 9, 2026. The deadline for the Secretary’s decision was therefore July 11, 2026.
July 11 came and went, and so did September 9, with no Federal Register notice of any kind. Instead, the USCIS El Salvador TPS page now carries this alert:
An announcement on El Salvador’s TPS will be made at the appropriate time. Until such announcement is made, Salvadoran individuals present in the U.S. under TPS retain protection including work authorization.
“At the appropriate time.” The appropriate time was July 11!
Our reading of the statute is that El Salvador’s designation has been extended by operation of law, for at least six months, to March 9, 2027. The government hasn’t said so, and it may claim that a termination decision was made quietly and never announced. Even on that theory, the statute requires that a termination be published, and it cannot take effect until 60 days after publication. Either way, no Salvadoran TPS holder should lose status without at least 60 days’ public notice in the Federal Register.
The practical problem is that roughly 170,000 people are holding work permits that say “September 9, 2026” on their face. Some employers are understandably nervous. And after the Supreme Court’s June decision in Mullin v. Doe, which held that federal courts largely cannot review non-constitutional challenges to TPS decisions, there may be no judge to ask for help.
Ukraine: the same clock, the same silence
Ukraine’s TPS designation runs through October 19, 2026. Count back 60 days and the decision deadline was August 20, 2026. Again, no decision was published.
By the same statutory logic, Ukraine’s designation has also been automatically extended by six months, to April 19, 2027. Yet the USCIS Ukraine TPS page still says the designation is set to terminate on October 19. (Read it before they change it!) We think the statute controls, not the webpage. We expect this to become a live dispute in about a month.
Note what the automatic extension does not do. It does not create a new designation. Only Ukrainians who already qualify, meaning those continuously residing here since August 16, 2023, are covered. Nobody new gets to apply.
What should TPS holders and employers do?
Our advice:
Keep your paper. Hold on to your EAD, any USCIS notice extending it (if they publish one), and a printout of the USCIS page for your country, dated. If the government’s position changes, you’ll want proof of what it said before.
Watch the Federal Register, not social media. A real termination has to be published there, and the 60-day clock starts on publication.
Do not travel abroad without talking to a lawyer first, and definitely do not travel abroad without advance permission to return.
Use the time. Six months is not a long time. If you have a U.S. citizen or permanent resident spouse, parent, or adult child, or an employer willing to sponsor you, now is the time to find out whether a longer-term option exists.
Employers: a work permit that looks expired is not necessarily expired. Talk to counsel before you let anyone go.
The government has broad power over TPS, and after Mullin v. Doe, courts may not check it. But broad power is not a license to ignore the procedures Congress wrote. A government that wants to end protection for people who have lived here lawfully for a quarter century should at least have the decency to say so, on time, in writing.
As always, we are happy to answer questions from readers as best we can.
