TPS continues for now.
On Monday, a federal judge in the District of Columbia ruled that Temporary Protected Status for Haitian nationals will remain in place. However, we do expect the U.S. Department of Homeland Security to appeal.
Judge Ana Reyes stayed the effective date of the TPS termination for Haitian nationals on Monday, one day before the termination was scheduled to take effect (yesterday, February 3). The court relied on a statute that authorizes agencies and courts to postpone the effective date of agency action “as justice requires” while judicial review is pending.
The stay means that Haitian TPS employees may continue working beyond the previously announced termination date, and, absent other independent disqualifying factors, remain protected from detention and removal while the litigation proceeds. Employers are not required to reverify these employees for Form I-9 purposes at this time.
The outcome is similar in practical effect to a stay issued on December 31 by a federal court in California, which applied to TPS for Nepalese, Nicaraguan, and Honduran nationals. The California court entered partial summary judgment and final judgment on claims under the Administrative Procedure Act, and the government has appealed.
After the California ruling, many employers expected guidance to be issued by the U.S. Citizenship and Immigration Services, including guidance on how to record the court-ordered continuation on Form I-9, what expiration date (if any) should be recorded, or whether a specific annotation is recommended. As of the date of this post, no guidance has been issued, and given the pending appeal, additional guidance may not be forthcoming.
On December 30, a federal court in Massachusetts relied on the same statute later relied upon by Judge Reyes to stay the termination of TPS for South Sudanese nationals pending judicial review of the merits. The USCIS issued no guidance in response to that ruling, either.
Based on the experience with these other countries, we do not expect the USCIS to issue guidance related to Judge Reyes’ decision applying to Haitian TPS and, as noted above, we do expect an appeal.
For employers of nationals of Haiti, as well as Sudan, Nepal, Nicaragua, and Honduras, here is the current status:
- Work authorizations, along with protections from detention and removal, continue under the applicable court orders while litigation is pending, absent some independent disqualifying issue.
- Reverification is not required based solely on the TPS termination date.
- Employers should avoid prematurely reverifying or taking other adverse action.
- Employers should document that they are acting (or refraining from action) in reliance on the applicable court orders.
We will continue to monitor these matters and provide updates as needed.
