In the last few weeks, the Trump Administration has moved to end Temporary Protected Status (“TPS”) for Nicaraguans and Haitians, and we can expect TPS programs for other countries to end as well. There are about 321,000 people with TPS in the U.S. Most (195,000) are from El Salvador. There are about 2,500 Nicaraguans with TPS and 57,000 Haitians.
The decision for Nicaraguan TPS came on November 6, 2017, though USCIS delayed the effective end-date of the program for 12 months “to allow for an orderly transition before the designation terminates on January 5, 2019.” Nicaraguan TPS went into effect in 1999, after Hurricane Mitch devastated the region.
The Department of Homeland Security (“DHS”) announced an end to the Haitian TPS program on November 20–
To allow for an orderly transition, the effective date of the termination of TPS for Haiti will be delayed 18 months. This will provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. It will also provide time for Haiti to prepare for the return and reintegration of their citizens…. Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the respective termination or extension periods.
USCIS also signaled the likely end of TPS for Honduras, but delayed the decision until later. “As a result of the inability to make a determination, the TPS designation for Honduras will be automatically extended for six months from the current January 5, 2018 date of expiration to the new expiration date of July 5, 2018.”
Given these changes, the fate of the remaining TPS beneficiaries is uncertain. “Recognizing the difficulty facing citizens of Nicaragua – and potentially citizens of other countries – who have received TPS designation for close to two decades,” Acting DHS Secretary Elaine Duke called on Congress to “enact a permanent solution for this inherently temporary program.” The idea that Congress will act to protect TPS beneficiaries seems unlikely, at best.
So if you have TPS and you are concerned about the end of the program, what can you do?
People losing TPS status potentially have a number of options, such as claims to U.S. citizenship, Cancellation of Removal, Adjustment of Status based on a family relationship or a job, a residency applications based on being a victim of a crime or human trafficking. Talk to a lawyer to review your specific situation and evaluate your eligibility (if you cannot afford a lawyer, there might be free services available to you).
For many TPS recipients, however, the only viable option may be asylum. To win asylum, an applicant must demonstrate that she faces a well-founded fear of persecution on account of her race, religion, nationality, political opinion or particular social group. In other words, to win an asylum case, you need to show that someone wants to harm you for one of these reasons. If you fear return because your country is generally crime-ridden or war-torn, that is probably not enough to win an asylum case. You need to show a specific threat based on a protected ground (I’ve written in more detail about this issue here).
Most of the “protected grounds” are pretty obvious. If someone in your country wants to harm you because they do not like your religion or race or political opinion, that is easy to understand. But what is a “particular social group”? The law defining particular social group or PSG is complex, and different courts have reached different conclusions about what constitutes a PSG. For purposes of this blog post, it is easier to give some examples of PSGs, and then if you think you might fall into one of these categories (or something similar), you can talk to a lawyer. Some common PSGs include members of a family or tribal group, LGBT individuals, women victims of FGM (female genital mutilation) or women who fear FGM, and people who are HIV positive. Other groups of people that some courts–but not others–have found to constitute a PSG include members of a profession (doctors, journalists, etc.), former police officers, former gang members, former U.S. embassy workers, street children, people with certain disabilities, people who face domestic violence, union members, witnesses/informants, tattooed youth, perceived wealthy individuals returning from abroad, and “Americanized” people. These last two PSG groups might be of particular interest to TPS recipients.
Creative lawyers (and asylum applicants) are coming up with new PSGs all the time, but if you can fit your case into a group that is already recognized as a PSG, that certainly increases the likelihood that your case will succeed.
To win asylum, you also need to show that someone (either the government or someone who the government is unable or unwilling to control) wants to “persecute” you on account of a protected ground. You will be shocked to know that the term “persecution” is not clearly defined by the law, and different courts have come up with different–and inconsistent–definitions. Persecution is usually physical harm, but it could be mental harm or even economic harm. An aggregation of different harmful events can constitute persecution.
In addition to all this, an asylum applicant must show that he filed for asylum within one year of entering the United States or that he meets an exception to this rule. I expect that this will be a particular issue for TPS recipients, since most have been here for years. If you have not filed within a year of entry and you do not meet an exception to the one-year rule, then you are not eligible for asylum. You may still qualify for other relief, which is similar to asylum but not as good: Withholding of Removal and Torture Convention relief.
One piece of good news is that TPS is considered “extraordinary circumstances” excusing the one-year asylum filing deadline. See 8 C.F.R. § 208.4(a)(5)(iv) (“The applicant maintained Temporary Protected Status… until a reasonable period before the filing of the asylum application.”). This means that it is probably important to apply for asylum before your TPS expires. Whether people who were in the U.S. unlawfully before they received TPS can meet an exception to the one-year rule, I am not sure, but for people in this situation who fear return to their country, it is certainly worth exploring.
Another possible exception to the one-year rule is “changed circumstances.” Maybe it was safe for you in your country, but then something changed, and now it is unsafe. If that happens, you need to file within a “reasonable time” after the change–hopefully, within a month or two. If you wait too long after the change, you will not meet this exception to the one-year rule.
For TPS recipients, asylum may be a last-ditch effort to remain in the U.S., and it may be difficult to win such a case. However, there are some advantages to seeking asylum. First, despite a crackdown on non-citizens, the Trump Administration has not moved to eliminate asylum. Such a move would be very difficult anyway, since asylum is written into the law (based on a treaty signed by the United States in 1968) and cannot be eliminated without Congressional action. So asylum should remain an option for the foreseeable future. Second, 150 days after you file for asylum, you can apply for a work permit. The work permit is valid for two years, and is renewable for the duration of the asylum case. Finally, the asylum process is slow. Normally, asylum delays are horrible for applicants (and for their attorneys), but if you are trying to delay your deportation until a new Administration comes along, asylum might do the trick.
If you have TPS, it is important to start considering your options now. Talk to a lawyer or a non-profit organization about your situation to see what you can do. Since we can’t expect much (besides trouble) from the government, non-citizens must use the tools at their disposal to protect themselves. Asylum is one such tool.
Hi thank you for all the information and your time, I feel very fortunate to have found this blog. I’m 31, living in the US since I was 12, came to the US in 1999 with a visitors visa from El Salvador acquired TPS in 2001 while my visa was still valid. My mom became a resident in 2007 but I was married a couple months before so I wasn’t able to obtain legal status through her. 4 years ago she became a citizen and petition me and my husband(Daca recipient) that application is in but it still a good 8 years away if nothing changes with the system. Now that TPS will end September 2019 I would like to apply for asylum. I cannot imagine a life for my 2 kids in El Salvador or Mexico, both my husband and I have lived in the states since we were kids(he was 3 when they first brought him, his grandmother was born in the US). We both have clean records. I would like to go in front of a judge to be able to explain our situation, why I’m so afraid to go back. Do you work in the Portland Oregon area? Or can I apply in a different office even if I was required to travel to that area if there’s a higher chance of being able to get my case approved in your area? I have family in the DC area and wouldn’t mind traveling to you if necessary.
You have to apply where you live. You should try to find a lawyer near you. Also, if the case is denied at the asylum office, you can apply for Cancellation of Removal in court. You may have a good case for that too (talk to a lawyer about that option). Also, for asylum, be aware of the one-year filing rule. I think TPS will count as an exception to the rule, but I am not sure. I wrote about that issue on January 18, 2017. Make sure to talk to a lawyer about that as well. Take care, Jason
Dear Jazon,
I read in an article (not sure which one in particular) where you highlighted the fact that FGM cases attracts different treat from different jurisdiction (not the exact word) in the US.
Perhaps some are more lenient than the other. Is there a thing a thing like that, if yes, kindly provide me few details about this or refer me to an article on this.
Thanks
Do you believe that President Trump can block family reunification? 🙁
If Congress passes a law to change family-based immigration, he can. Take care, Jason
Jason, thank you so much for all your help to asylum seekers, it seems like no one cares as much as you do about us and our troubles that we face. Jason, here is my question :
Our daughter was in asylum case with us but she got married to US citizen, in 2 years when she will get permanent green card, can she do family reunion with us, in other words would we have a chance to get green cards thru her, if we will not win the asylum case? Or she needs to become citizen first and than reunite with parents? Thank you so much
Only a US citizen can petition for her parents, so she cannot do that with a green card. There is talk that this law might change, so you will have to keep an eye on that. In practical terms, you will probably have to do the asylum case, so plan accordingly. Take care, Jason
I am trying to write supporting document to my brother seeking asylum and I don’t know what write. Can you send me sample letter how to write?
Thank You
I wrote a blog post about this on August 16, 2012 – maybe that would help. Happy New Year, Jason
Have a question. I applied for asylum 3 years ago in VA (still freaking pending). I soon applied for tps and got it. Now my husband is here and I’m gonna be adding him to my case soon. Can he still apply for tps?? Country is Yemen and entry date to the US is Dec 4, 2017.
There are limits to when a person can apply for TPS, and I do not know whether he could apply for that now. He can check the TPS website at http://www.uscis.gov. He can join to your asylum case and get a work permit on the same schedule as you (once he is joined). Take care, Jason
What do you mean by get work permit the same schedule as me?? He doesn’t have to wait for 5 months to apply??actually not only 5 months but 5 months to apply and another 5 months to receive it.
If you, the principle applicant, are due for your EAD then so is he. He can apply without having to wait the 150 days.
On a separate note, the protcol here is that we thank Jason for the time he spends answering our questions, and ask him to kindly elaborate or explain when we require more information.
Oh I’m so sorry for that. I thank you so much for the reply, sir. I really appreciate all the effort and the time you give to reply to each one of us. I apologize one more time.
👍👍👍
Poor girl is clearly worried about her family and status and you are worried about perceived manners. Get off your high horse.
Once he is joined to the case (which can be bureaucratically challenging), he can file for the work permit as if he had been part of the case since the beginning, so if you have your work permit, he can file as soon as he joins the case. Take care, Jason
My deep thanks and appreciatation to you effort and help.
Hi Jason,
Since the law seems to be very clear about this, I wish they had referred the case to court upon receipt rather than wait until the scheduled interview date, almost 3 years later, to do so.
Hopefully she will get a court date soon and win there.
That would have made sense, but my guess is that they are not that organized and they are not checking for VWP countries. And probably there are not so many applicants with this issue, so maybe they will not prioritize fixing it. Take care, Jason
Thank you for being courteous. Both of you.
I wish they were doing what Sara is discussing above, but I guess these are the little dead end streets in the huge mess of immigration related bureaucracy.
Anyway, EAD still valid, life goes on.
We have plans for the future and didn’t lose hope.
Justice will be served, maybe not today but eventually…
We are on the way to the interview, please wish us luck!
All the best, lady!
I posted a message to you yesterday on Jason’s most recent blog post, so you were on my mind already. 🙂
Our case wasn’t heard at all. We’re from a EU country which has visa waiver program so we should’ve applied within 90 days from arrival and we didn’t so AO said there is no jurisdiction on our case and they will send the explanation by mail.
No interview whatsoever. We’re shocked, attorney too.
We got an officer who never ever grants cases anyway as per our attorney. So now we’re waiting on the explanation and probably will wait for a hearing date in front of the IJ.
It might be a blessing in a disguise I do not know what I feel right now.
Hey Celia,
So your attorney didn’t know about this visa waiver program, had you file anyway and wait almost 3 years to be interviewed?
Also, you were called for an interview anyway (that they made you wait that long for) for them just to tell you that?
Something’s doesn’t add up.
You’re right that it may be a good thing, especially given that you had filed long after the 1 year and so maybe the regular affirmative asylum route may not have been best for your case.
Let’s see what Jason has to say, and in the meantime try to stay positive and hopeful.
Good luck!
Well it feels like some nonsense excuse to me. Not evem conducting an interview because of the visa waiver program? If we’d had a tourist or student visa it’d be different.
I just don’t get it.
There are a lot of stupid rules that we need to deal with, and this is definitely one of them, but it is one of the rules. I do think the attorney had an obligation to know about this rule, as we are obliged to know about all rules. However, I think I would have made the same mistake, and so I cannot be too critical. Perhaps the lawyer will feel bad and make a strong effort to expedite your case in the court. Take care, Jason
Check the I-589 form instructions – search the instructions for the word “waiver” and you will find it. They will send the case to court where the judge will give you a decision. Sorry for this, Jason
It doesn’t make sense to me either. Will be reading up on this until we hear from Jason.
I’m very sorry you had to go through all this stress for this outcome, but it hasn’t been decided yet, and you will still get to present your case. They have to hear what you have to say, if not at the asylum office then in court.
Did your lawyer try to get more information on the next steps?
The next step would be the letter of explanation and to understand what they have to say. After that we either appeal if there was a mistake clearly made or we just wait until the case gets to court and we have a hearing date.
I don’t know for sure. But we were the only one sent away which is very disturbing and disappointing.
If I arrived on a VWP I can’t be hurt? I can’t be depressed enough to not to apply within 90 days?!
Everyone else has one year to apply we supposedly had only 90 days.
So your case will still be heard, and Jason has said before that many cases that face obstacles to being granted at the asylum office, get granted in court. The judges seem to have more options at their disposal.
I agree that the 90 days rule sounds unfair, and I’m still not sure why your lawyer didn’t know about it if it’s the law.
The important thing now is not to lose hope. I can only imagine how tough that must be at this point, but you need to stay as strong as you can to see this through.
This is right – it is often easier to win at the court than the asylum office. The rule is unfair. As a great asylum lawyer once said, “No country is safe for everyone, all the time” – even a VW country. Unfortunately, that is the law, and the decision at the asylum office is correct, in that the officer is following the (very stupid) law. Take care, Jason
According to what I’m reading online, VWP entrants may not adjust their status in the US past the 90 days. I have yet to find something about filing for asylum specifically, but it sounds to me like this is the law and that your lawyer should have advised you on this.
It is in the instructions to the I-589. Search the document for the word “waiver” and you will find it. Take care, Jason
Well the lawyer didn’t. She never heard anything like that in 20 years and just had a case of a french person with VWP outside the 90 days. Anyway, we’re going to court then, we won’t give up.
That’s the spirit and the attitude that will have you winning in court. Never give up 🙂
I just don’t get it, most people comes with the VWP and are able to get a green card through marriage for example. That doesn’t matter I guess
I don’t know much about the VWP, but it seems that the 90 days define the period in which you are in status. But if that sets the limit as to how long you have to file for asylum, then why aren’t the 6 “in status” months in a B1/B2 entrant’s case the limit for filing for asylum? It doesn’t make sense to me, and I totally understand where your confusion is coming from, and why you feel it isn’t fair — especially when your lawyer has a client with a similar case that got interviewed with no issues.
Will be waiting to hear from Jason with you.
Well it sounds weird. Just because I don’t need a visa to leave my country I’m less of a victim? I don’t deserve to be heard? We applied years after the 90 days passed but we have a strong evidence why. They didn’t even want to hear about it.
It upsets me…
I would be upset, too. Technically, they’re not denying you the right to have your case heard. It may be one of those cases where an asylum officer won’t be able to make a decision on your case, and only a judge can. But even then, I would expect them to conduct the interview and listen to the evidence you have for not applying within the 90 days.
Also, it’s not like they receive cases and just put them in the pile without a glance. How else do they know to prioritize certain applicants such as unaccompanied minors? They interview applicants who file past the 1 year deadline, and listen to their evidence of extraordinary circumstances that prevented timely filing. I don’t get why that’s not the case for VWP entrants, which is probably what they will explain in their letter.
I was hoping the officer could have given you a detailed explanation while you were there, especially in the presence of your lawyer who could have asked all the necessary questions.
Either way, you will find out everything you need soon so you can be well-prepared for court, and win.
The lawyer asked him questions but he short cut everything with blunt answers and kept saying it is a jurisdiction issue.
They saw our application they know under what status we arrived , they supposed to know it better, why did they set us up for an interview then?
I’m pretty sure we will win at the court level but we were prepared for today and we went through a lot of unnecessary drama and pain to get ready. It’s plain cruel.
I am sorry to hear that – There is a provision related to visa waiver people (and other categories too, like crew members). You can find that on the I-589 instructions. Essentially, if you enter on a visa waiver and file after the period of stay expires (usually 90 days), the case is automatically referred to a judge. I did not know about this provision until now, as I had not done an asylum case from a visa waiver country before. That is a pretty obscure rule, and my guess is that not many people would have known about it. While it is disappointing, in my view court cases are easier to win than asylum offices cases, so hopefully you will have good luck there. Also, if there is a silver lining, now more people know about this provision and at least for me, if I ever have a client from a visa waiver country (or a crew member), I will remember about this rule. Take care, Jason
It’s good to know. Not so good that we didn’t know about it.
It’s actually pretty terrible – there are these obscure rules and USCIS sometimes seems to take delight in enforcing them. Anyway, I hope you will have good (and fast) luck in court. Take care, Jason
if we are not entitled for an interview then why the invitation? They could just refer the case to the court right then and there…
I don’t even understand why only these 4 categories are excluded, there’s no explanation on the i-589 instruction form. Question marks.
Probably you were scheduled for an interview because they did not check for your visa category beforehand, and they are not that organized, but that is only my guess. Congress has limited certain benefits for these categories of entrants, and the limits on asylum are one of them. Maybe there is some explanation in the Congressional record, but I have not seen that. Take care, Jason
The relevant part in the I-589 instructions says: “Individuals subject to these special categories who file asylum applications with USCIS service centers will be served with Form I-863, Notice of Referral to Immigration Judge, when they appear at the USCIS asylum office and will be referred to Immigration Court for an asylum-only hearing.” Apparently, the notice of referral is only given when applicants appear at the asylum offices. I’ll bet that this was written when asylum cases were adjudicated in a timely manner, and the wait time wasn’t as long as it is now.
Anyway, we’ve established now that the asylum officer was just following the rules, and wasn’t being unnecessarily difficult, and you now know that you’re on your way to having your case heard (and granted) in court, hopefully very soon.
I am not sure what they mean by “asylum only hearing” and I think the lawyer needs to check that. It should be in the CFR – the Code of Federal Regulations. Take care, Jason
I paused at that, too. Maybe they mean asylum-only relief and not withholding of removal? Who knows. The lawyer will need to check this, for sure.
Thank you Sara for being prompt and always in a positive manner.
I now understand that there are small little things in bureaucracy that can make all the difference, sometimes it’s just hard to make my rational human brain accept these hairsplitting ways and loopholes.
Thank you for finding the explanation part, I was either too emotional and mad and couldn’t see or it’s just well hidden.
Another battle to win but we are still standing strong on our feet.
I am glad to hear you are resolved to keep going. The system tries very hard to beat you down, and you have to keep going. Take care, Jason
You’re most welcome. I know that if I had to deal with that, I would need to talk to someone who can relate.
Glad to hear that you’re ready and determined to see this through. 🙂
http://immigrationimpact.com/2017/03/20/visa-waiver-program-overstays/
I found this article interesting…
The government is good at finding the obscure laws that screw up people’s lives, that is for sure…