Year: 2018

The Department of Homeland Security announced on Monday that it is ending the Temporary Protected Status (TPS) designation for over 200,000 Salvadorans who have lived and worked lawfully in the US for the past 17 years. The termination of TPS, however, will be delayed until September 9, 2019, in order allow individuals time to close their businesses, sell their homes and assets, and otherwise prepare for their departure from the United States.  According to the Washington Post, the decision to revoke TPS for El Salvador will impact not only the over 200,000 individuals protected by the status, but also their estimated 190,000 US-born children.

DHS originally designated TPS for El Salvador in response to two devastating earthquakes that struck only weeks apart in 2001, resulting in thousands of landslides across the country. Over one thousand Salvadorans lost their lives in the quakes and resulting landslides, and hundreds of thousands of homes were destroyed, in addition to millions of dollars in damage to the country’s water and sanitation systems.

The protected status designation has been renewed 11 times since its initial designation. The most recent extension, which was granted in 2016, cited numerous subsequent natural disasters to justify the extension, including hurricanes, tropical storms, flooding, seismic activity, and a prolonged drought that caused severe shortages of food and adequate drinking water. Additionally, the previous extension cited the increased spread of mosquito-borne illness, housing and electricity shortages, and gang-related insecurity across the country as further justification. In Monday’s announcement, DHS Secretary Kirstjen M. Nielson states that the decision came after determining that “the original conditions caused by the 2001 earthquakes no longer exist,” and that the “substantial disruption of living conditions caused by the earthquake no longer exist.”

The decision comes after two other countries lost their TPS designations in 2017, Haiti and Nicaragua. The Trump Administration extended the TPS designation for Honduras until July 2018, but suggested that it may decide not to renew the designation in the future.

The Department of Homeland Security is reported to be considering changes to regulations that currently allow certain individuals in H-1B status to extend their status beyond the 6-year limit. The changes being considered would impact individuals who have an approved I-140, but are not yet able to apply for permanent residence (green card) due to the visa backlog. Currently, such individuals are eligible to extend their H-1B beyond the 6-year limit in 3-year increments, which allows them to continue working without interruption for their US employer while they wait for their priority date to become current.  Although no changes to the extension regulations have occurred, DHS is reported to be considering making these extensions discretionary, which would greatly increase the risk of denials.

Importantly, any change to DHS’s interpretation of this regulation would require a formal announcement followed by a 90-day notice and comment period before any changes could be implemented. In addition, any change to DHS’s longstanding interpretation of law would be subject to extensive litigation, which would likely further delay implementation of any change.

While these reported considerations are worrisome, there have not yet been any changes in DHS regulations or policies. We will continue to stay abreast of any changes to this and other DHS policies, and will post updates on our website.