More Updates on TPS: Syrians, El Salvadorans, and Haitians

DHS Secretary Nielsen has determined that an extension of the Temporary Protected Status designation for Syria is warranted pursuant to INA §244(b)(1)(A) (ongoing armed conflict) and INA § 244(b)(1)(C) (temporary but extraordinary conditions). The designation has been extended for another 18 months, through September 30, 2019. However, there is a small caveat in the determination: TPS will not be offered to any Syrian national who arrived after August 2016. This restriction could be appropriate under a determination for a natural disaster, but it does not make a lot of sense to apply such a restriction to what has essentially been determined to be an active combat zone. There are fewer than 7,000 Syrians in the United States who have protection under TPS.

Meanwhile, and as widely reported in the news, DHS terminated TPS for nationals from Nicaragua, Haiti, Sudan, and El Salvador, the latter of which will officially terminate on September 9, 2019. The loss of TPS designation for El Salvador alone will affect 200,000 people who have been legally residing in the U.S. for nearly two decades.

The termination of Haiti’s TPS designation has been challenged in the courts by the NAACP, alleging the termination was motivated by racial animus. Meanwhile, and while that case is litigated, DHS removed Haiti from the H-2A/B visa list (visas for low-skill seasonal workers in agriculture and other industries who are citizens of a designated country). The current list includes over 80 countries, mostly from the Western Hemisphere and Europe. DHS has the authority to add or remove countries from the list at any time. In its notice removing Haiti from the H-2 country list, DHS cites “high levels of fraud and abuse” and a “high rate of overstaying” by the few Haitians who hold H-2A/B visas. Belize and Samoa were also removed from the lists for risks stemming from human trafficking and for not taking back nationals ordered removed from the United States, respectively.