In this week's Consulta Migratoria® column, I report on Venezuela's designation to the Temporary Protected Status (TPS) program for 18 months.
During his presidential campaign, Joseph R. Biden promised that, if elected, he would grant TPS to Venezuelans. On March 8, 2021, President Biden's Administration announced that they are granting this benefit to citizens of Venezuela, who are already living within the U.S. territory, due to the "complex humanitarian crisis" in their country.
Secretary of Homeland Security Alejandro N. Mayorkas, designated TPS for Venezuelan nationalswhich is effective as of March 9, 2021. The protection is extended for 18 months, until September 9, 2022.
According to DHS, "the designation is due to extraordinary and temporary conditions in Venezuela that prevent nationals from returning safely to their country. These include a complex humanitarian crisis marked by widespread hunger and malnutrition, a growing influence and presence of non-state armed groups, repression, and a dilapidated infrastructure. TPS may be extended to a country with conditions that fall within one or more of the three statutory bases for designation: ongoing armed conflict, natural disasters, or extraordinary and temporary conditions."
Only individuals who can demonstrate that they meet all the necessary requirements, including continuous residence in the United States since March 8, 2021, are eligible to apply for the TPS program for Venezuela. Venezuelans arriving in the United States after March 8, 2021 ARE NOT eligible for TPS..
Venezuelan citizens and persons without nationality, whose last habitual residence was Venezuela, who register for TPS may not be removed from the United States and will have access to apply for a work permit.
United States Citizenship and Immigration Services (USCIS) will issue a notice in the Federal Register (Federal Register) on March 9, 2021. It will provide details on how to submit an initial TPS registration for Venezuelans and apply for a work permit under the program.
The Federal Register notice also explains how Venezuelans can apply for a work permit through the Deferred Enforcement Departure (DED) program granted in January 2021. by the Administration of former President Donald J. Trump.
The action by President Biden's Administration will benefit approximately 323,000 Venezuelans.
What is it and how to obtain Temporary Protected Status (TPS) for Venezuelans in 2021?
The Secretary of DHS may designate TPS because of conditions that temporarily prevent people from returning safely to their country. USCIS may grant TPS to eligible persons from certain countries (or portions thereof) who are already in the United States. Eligible persons who have no nationality and whose last residence was the designated country may also be granted TPS.
The Secretary of DHS may designate a country to TPS if the temporary conditions exist:
- Ongoing armed conflict (such as civil war).
- A natural disaster (such as an earthquake or hurricane) or an epidemic.
- Other extraordinary and temporary conditions.
During the designated period, TPS beneficiaries or those persons preliminarily eligible for TPS during the initial review of their cases:
- They will not be removed from the United States.
- They can obtain an Employment Authorization Document (EAD).
- They can obtain a travel authorization.
- After obtaining TPS, a person cannot be detained by DHS because of his or her immigration status in the United States.
TPS is a temporary benefit that no leads to lawful permanent resident status nor does it confer any other immigration status. However, registering for TPS does not prevent you:
- Apply for non-immigrant status.
- File an application for adjustment of status based on an immigrant petition.
- Apply for any other immigration benefit or protection for which the person may be eligible.
What are the TPS eligibility requirements for Venezuelans?
To be eligible for Venezuelan TPS, a person must:
- Be a citizen of Venezuela, or a person without nationality whose last habitual residence was in Venezuela.
- Apply for TPS during the initial registration period beginning March 9, 2021 and ending September 9, 2021.
- Have been continuously physically present in the United States since March 8, 2021.
- Have continuously resided in the United States since March 9, 2021. The law allows an exception to the continuous physical presence requirement and the continuous residence requirement for short, casual and innocent departures outside the United States.
One person no will be eligible for TPS if:
- Has been convicted of a felony, or two or more misdemeanors, committed anywhere in the world.
- Is found inadmissible as an immigrant under immigration law, including for criminal or national security reasons.
- Is subject to any of the statutory bars to asylum, including having engaged in the persecution of another person or engaging in or initiating terrorist activity.
- Failure to meet the requirements of continuous physical presence or continuous residence in the United States.
- If granted TPS, fail to re-register for TPS, as required, without good cause.
When does the initial registration period for TPS for Venezuelans begin?
The initial TPS registration period for Venezuelans begins on March 9, 2021 and ends on September 9, 2021.
How long will Venezuelans be protected by TPS?
TPS for Venezuelans provides 18 months of protection to certain Venezuelan nationals, or aliens without nationality who have habitually resided in Venezuela, who are in the United States. The period of TPS protection for Venezuelans begins on March 8, 2021 through September 9, 2022.
What documents do you need to file with USCIS to apply for Venezuelan TPS and work permits?
Persons wishing to apply for TPS for Venezuelans and work permits must include all necessary forms, evidence and fees or fee waivers. All eligibility requirements must be met at the time of filing your TPS application.
The forms that must be filed with USCIS are Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization.
When submitting an initial application for TPS, you must provide:
- Evidence of Identity and Nationality: to prove your identity and that you are a Venezuelan citizen, or that you have no nationality and your last habitual residence was in Venezuela.
- Evidence of Date of Entry: to show when you entered the United States.
- Evidence of Continuous Residence: to show that you have been living in the United States since the date of continuous residence specified for your country.
- Any document that is not in English must be accompanied by a complete English translation.
Can persons eligible for TPS from Venezuela also apply for a work permit through DED for Venezuelans?
Eligible Venezuelans may apply for employment authorization with USCIS through TPS and DED.
However, it is recommended that they only apply for the work permit through the TPS, since this document will be valid until September 9, 2022.
Can Venezuelans protected by TPS leave the United States and return to the country?
Individuals protected by TPS may apply for an advance entry permit with USCIS to travel outside the United States.
Venezuelans with TPS who leave the United States without an advance entry permit will no longer be eligible for TPS and will not be able to re-enter the country.
The USCIS determines whether or not to grant an early entry permit and it is not guaranteed in all cases.
Can Venezuelans covered by TPS accumulate "unlawful presence"?
Eligible Venezuelans, or aliens without nationality who have habitually resided in Venezuela who are protected by TPS, do not accrue "unlawful presence" for purposes of adjustment of status or other immigration benefits for which they may apply during the period of time they are covered by TPS.
If a person eligible for TPS or DED from Venezuela does not have a work permit to indicate such eligibility, how can he or she avoid removal from the United States?
Anyone eligible to apply for TPS protection for Venezuelans should do so immediately. USCIS will provide filing receipts to persons who have applied for TPS and these receipts can be shown to immigration authorities to avoid arrest or removal from the United States.
DED status is automatic and eligible Venezuelans, or foreigners without nationality who have habitually resided in Venezuela, do not need to apply for and obtain a work permit to benefit from DED protection.
U.S. Immigration and Customs Enforcement (ICE) will issue guidance to its attorneys, officers and agents to ensure that eligible Venezuelans, or aliens without nationality who have habitually resided in Venezuela, are not removed from the United States in violation of the TPS and DED designation for Venezuelans.
What will happen to Venezuelans who have asylum cases pending with USCIS or the immigration court?
Venezuelan asylum cases will continue to be processed by USCIS and the immigration court.
If USCIS or the immigration court approves the asylum application, the applicant may be able to obtain permanent residency by meeting certain requirements.
If USCIS denies the asylum case, it will refer the case to the immigration court for an immigration judge to review USCIS' decision. If the immigration judge denies the asylum case, he or she will issue an order of removal against the applicant which may be appealed to the Board of Immigration Appeals.
ICE may not remove persons protected by TPS or DED who have final orders of removal.
Please consult with an immigration attorney to evaluate your immigration situation as soon as possible and help you with your immigration proceedings.
For more information and immigration tips, visit my website at Immigration Today.
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Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a former President of the Hispanic National Bar Association and the Westlake South Los Angeles Neighborhood Council. For information on how to consult with Dr. Castillo, click here. click here.
The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. This column may be considered an advertisement under the Rules of Professional Conduct for attorneys in several states, including California and New York. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.