The U.S. Court of Appeals for the Ninth Circuit has reversed a lower court’s order vacating the Department of Homeland Security’s (DHS) termination of Temporary Protected Status (TPS) for Honduras, Nepal, and Nicaragua, reinstating the DHS termination.
In granting the stay pending appeal, the Ninth Circuit concluded the government is likely to succeed on the merits of its appeal, either by demonstrating the district court lacked jurisdiction or by prevailing over the plaintiffs’ claim that the TPS terminations were arbitrary and capricious under the Administrative Procedure Act (APA).
Background
On Dec. 31, 2025, the U.S. District Court for the Northern District of California vacated DHS’s decisions to terminate TPS for Honduras, Nepal, and Nicaragua, thereby setting aside the terminations.
Pursuant to that decision and order, TPS designations for Honduras, Nepal, and Nicaragua were reinstated, and affected individuals’ work authorization was restored.
DHS appealed the ruling to the Ninth Circuit and sought a stay of the district court’s decision pending appeal.
Ninth Circuit Stay and Immediate Impact
With the Ninth Circuit’s Feb. 9, 2026, stay, the district court’s vacatur is no longer in effect while the appeal proceeds. As a result, DHS’s prior terminations of TPS for Honduras, Nepal, and Nicaragua are reinstated — no longer set aside — during the pendency of the appeal.
The Ninth Circuit’s order addresses only the legal status of the district court’s vacatur pending appeal. USCIS has updated its TPS websites for Honduras, Nepal, and Nicaragua to indicate that TPS has terminated and prior TPS holders no longer have work authorization.
Individuals who had continued working pursuant to the district court’s vacatur no longer have valid employment authorization based solely on TPS from those countries.
Employer Considerations
Employers that retained or rehired employees based on the district court’s order vacating the TPS terminations should promptly assess their workforce and I-9 compliance obligations in light of the Ninth Circuit’s stay and updated DHS/USCIS guidance.
If an employee’s work authorization was based solely on an expired EAD based on TPS from Honduras, Nepal, or Nicaragua and the District Court’s decision and no other independent lawful status or employment authorization exists, employers may be required to terminate employment due to lack of valid work authorization.
Employers should:
- Review affected employees’ Forms I-9 and supporting documentation;
- Determine whether any employee has alternative work authorization;
- Avoid selective verification practices that could raise discrimination concerns;
- Ensure any employment action is based on objective documentation requirements and policies are applied consistently.
Given the rapidly evolving litigation and policy landscape, employers should consult with employment and immigration counsel.
Continuing Developments
TPS policy continues to shift and remains the subject of active litigation. The Ninth Circuit’s decision does not resolve the underlying merits of the case. Additional developments are expected as the appeal proceeds.
