Temporary Protected Status attorneys in New Orleans
What is TPS in the United States immigration legal system?
As its name suggests, Temporary Protected Status provides non-citizens with non-permanent immigration status in the United States. TPS is a relatively new immigration benefit created by the United States Congress in 1990 when the Immigration and Nationality Act was overhauled.
TPS protects citizens of certain countries designed by the U.S. Congress or the Department of Homeland Security. The purpose of TPS is to protect citizens of designated countries who might face unsafe conditions or a significant burden if they return to their home country.
The United States makes TPS designations based on humanitarian crises derived from environmental disasters, armed conflicts, civil unrest, widespread violence, or other extraordinary and temporary conditions. A typical TPS designation is made after the government determines that it is unsafe to return to a specific nation based on a country condition assessment.
The main point is that the US Government through Congress or the Executive Branch (although the former has made a single TPS designation in 30 years), has the power to designate countries for Temporary Protected Status and provide its citizens with a circumstantial immigration status to protect them.
Who qualifies for TPS?
Generally speaking, to qualify for Temporary Protected Status, an applicant must comply with three basic requirements.
First, the applicant needs to prove that is a citizen of the designated country or a stateless person who has last habitually resided in the TPS designated country. The simplest way to prove citizenship is using a passport or birth certificate issued by the designated country’s authorities.
Second, the applicant needs to prove ‘physical presence’ in the U.S. at the time the TPS designation was officialized. Typically, the DHS publishes a resolution on the Federal Register stating that citizens of the designated country physically present in the U.S. before a specific date, are eligible for temporary protected status. Usually, the date precedes the publication on the official registrar. There are several ways to prove physical presence before the stipulated date, among them, bank statements, lease contracts, pay stubs, proof of insurance and school records. Any document or affidavit able to confirm the presence of a person in the U.S. can be submitted to the immigration authorities.
Finally, the applicant must show continuous residence in the U.S., from the time in which the designation occurred, until the application is formally submitted, however, briefs or accidental absences from the US territory can be forgiven under exceptional circumstances. Travel records obtained through CBP, copies of the passport’s pages, along with the same sort of evidence capable of proving the physical presence mentioned above, can be used to demonstrate that the applicant has remained in the US since the designation.
Furthermore, a TPS applicant cannot be inadmissible under immigration law. Admissibility is a concept within the Immigration and Nationality Law that bars aspirants for admission to the U.S. under certain circumstances. Under INA, a person is inadmissible if suffers certain medical conditions, has committed specific types of crimes, has violated the immigration law, or represents a danger to the security of the United States.
In this specific context, this means that the applicant should not have committed one serious crime or two misdemeanors, since most of the inadmissibility grounds are waived for TPS applicants, especially those related to violations of the immigration laws.
How TPS benefits a person after the application has been granted?
TPS creates two main legal effects, protects TPS holders against deportation and authorizes them to work in the United States, however, TPS applicants are not required to apply for an employment authorization document. Also, a TPS holder can apply for authorization to travel abroad.
Protection from deportation might signify different things. It might mean that a person who entered illegally into the United States will not be deported; that a person who comes to the United States on a temporary visa and loses status because overstays his authorized period will not be placed in removal proceedings; that a person who becomes ‘removable’ after being denied an immigration visa/relief is not placed in removal proceedings; that a person in removal proceedings can get his case suspended, among several other possible scenarios. The main idea is that TPS holders cannot be removed from the United States while their TPS status is still valid.
Employment Authorization under TPS.
A person that applies for TPS can simultaneously apply for a work permit, but if the person desires not to, he can do it once the TPS application has been granted. A work permit under a TPS category (A-12 / C-19) authorizes a person to retain employment in the United States without significant limitations. Work permits are generally issued for a period equal to the validity of the TPS status and can be renewed while the TPS designation is still valid.
What countries are currently designated for TPS in the United States?
Does TPS offer a path to permanent residency?
As of the time this article is drafted, the Immigration and Nationality Act of the United States does not allow TPS holders to adjust status to that of a permanent resident based on the TPS designation only. However, if a TPS holder obtains an immigrant visa while in TPS status, it might be possible for him to become a permanent resident.
TPS and dual citizenship?
The core purpose of the TPS is to keep nationals of a designated country out of danger. The policy is, I protect you temporarily so that you don’t have to return to your home country to face peril. But when a person has two nationalities, there always exists the possibility to find shelter in a different country, a country different to the one designated for TPS.
This does not mean that a person with dual citizenship cannot apply for TPS, though it requires a meticulous examination of the actual nexus between the applicant and the non-TPS designated country.
Variables like how the applicant acquired the citizenship of the non-TPS designated country, linguistic barriers, period of permanent stays in that country, frequency of trips, family ties, property, and other connections to the third country. All these elements might be analyzed to determine if the applicant has firmly resettled in the third country.
If that is the case, it is unlikely that a TPS application is granted since the person can find a safe harbor somewhere else.
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