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WHAT IS TEMPORARY PROTECTED STATUS?

Temporary Protected Status (TPS) was enacted in 1990 to apply to non-resident foreigners wishing to avoid returning to their homeland because of civil strife or effects of a natural disaster of “extraordinary and temporary conditions”. During the period for which a country has been designated for TPS, TPS beneficiaries may remain in the United States and may obtain work authorization. However, TPS does not lead to permanent resident status (green card). When the Secretary terminates a TPS designation, beneficiaries revert to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS.

On June 24, 2015, The Department of Homeland Security (DHS) announced the designation of Nepal for TPS and that eligible Nepalese nationals (and people without nationality who last habitually resided in Nepal) residing in the United States may apply for Temporary Protected Status (TPS) for 18 months based on the conditions resulting from the devastating magnitude 7.8 earthquake that struck Nepal on April 25, 2015, and the subsequent aftershocks. As a result, eligible nationals of Nepal residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The designation means that, during the designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive an Employment Authorization Document (EAD). The 180-day TPS registration period begins June 24, 2015 and runs through December 21, 2015.

FREQUENTLY ASKED QUESTIONS FOR TPS (FAQS)

Q. Who is Eligible?
A. You may be eligible to apply for temporary protected status if:

• You are a national of a Nepal who have valid visa status or are out of status. (You may also be eligible if you are a person who has no nationality but last habitually resided in Nepal.)
• You apply for TPS during the specified registration period. The 180-day TPS registration period begins June 24, 2015 and runs through December 21, 2015 for Nepal.
• You have been continuously physically present in the United States since the TPS designation began, which is June 24, 2015.
• You are admissible as an immigrant and are not otherwise ineligible for TPS. Applicable grounds of inadmissibility and bases for ineligibility are specified in CFR 244.3 and 244.4, respectively. You may also consult the instructions on USCIS Form I-821 (Application for Temporary Protected Status).

Q. What is the deadline for Nepalese to file for TPS?
A. For Nepal, you must register during the initial 180-day registration period that runs from June 24, 2015 through December 21, 2015. We encourage you to register as soon as possible after the 180-day registration period opens.  Skilled immigration attorneys can assist in the preparation of applications.

Q. How Do I Apply?
A. If you are applying for TPS for the FIRST TIME, you must complete USCIS Form I-821 (Application for Temporary Protected Status) and submit a filing fee, supporting evidence of identity and nationality, proof of residence, and, if you are age 14 or older, a fee for biometric services.  If you are between the ages of 14 and 65 and want employment authorization, you should also complete and submit USCIS Form I-765 (Application for Employment Authorization) with the appropriate fee. Applicants who already have or do not wish to receive employment authorization still must submit a completed USCIS Form I-765 with their Form I-821, but without the accompanying fee. If you are over the age of 14, you will be called by the USCIS for biometrics after you send in your application.

If you are granted TPS, you must re-register with the USCIS for each period that your TPS benefits are extended.

Q. Will I Get a Work Permit?
A. If your TPS application is approved, you will receive work authorization document so called “EAD” card (if requested). At the same time you apply for temporary protected status, you must submit USCIS Form I-765 (Application for Employment Authorization) and the appropriate fee to apply for a work permit. Applicants who already have or do not wish to receive employment authorization still must submit a completed USCIS Form I-765, but without the required fee.

Q. May I Travel Outside the United States?
A. An individual granted TPS must remain continuously physically present in the United States. The grant of TPS status does not mean that you have permission to travel abroad, though permission to travel may be granted by the district director in accordance with the ADVANCE PAROLE regulations. Failure to obtain advance parole prior to traveling abroad may result in the withdrawal of your TPS and/or the institution or re-calendaring of removal proceedings.

Q. How Can I Check the Status of My Application?
A. Please contact the USCIS office that received your application. You should be prepared to provide the USCIS staff with specific information about your application. Please click here for complete instructions on checking the status of your application.

Q. How long will I be able to stay in the United States with TPS?
A. The answer depends on the nature of the emergency situation in your country and the length of time for which DHS designates your native country TPS-eligible. The initial period provided is not less than six months and not more than 18 months, but DHS can extend this time if country conditions warrant it.

Q. What if I entered the U.S. illegally or overstayed my visa — Can I still apply for TPS?
A. Yes. An individual who entered the United States without inspection (EWI) may still be eligible for TPS if he or she meets all the eligibility requirements.  Entering without inspection (EWI), by itself, is not a bar to TPS.  You need to consult with an experienced immigration attorney to find out the evidence that you need to furnish your entry into the USA.

Yet another compelling reason to apply for TPS is that once you are approved, your period of unlawful presence in the U.S. will be “tolled” or stopped. That means that the time spent in the United States while a TPS beneficiary will be considered lawful for the purposes of adjusting status and avoiding inadmissibility problems.

Q.  If I am granted TPS, am I then eligible to apply for a green card at a later date?
A. No. TPS is a temporary immigration status for people temporarily in the U.S., to protect them from having to return to an actively dangerous situation in their home country. Even if you were to live and work legally in the United States as a TPS beneficiary for many years, there is no route to permanent residence (i.e., a green card) that will follow simply from a grant of TPS.

However, you may now be, or later become eligible to apply for green card through marriage to a US citizen, a job offer and sponsorship by a U.S. employer, or a grant of asylum.

Q. If I am granted TPS and can legally work for a U.S. employer, can that employer, or another one, sponsor me for a green card?
A. Technically, yes, for many (but not all) types of jobs. But finding a willing employer may be difficult. It is a long and complicated process with a number of rules and regulations and requires a great deal of time and effort on the employer’s part.

Depending on your level of education and skills, there can often be a crowded waiting list for an available visa, and employers may have to obtain what’s known as “labor certification” to prove that there are no qualified U.S. workers available who can do the same job.

Q. I’m a student, on F1 visa, can I apply for TPS and keep the F1 visa at the same time!
A. Yes, you can, and this is a rare instance where you can apply for TPS and still be on F-1 at the same time. Make sure not to fall out of F-1 status so that you may have an employer apply for an H-1B for your after graduation.

TPS is a valuable alternative option if any issues arise with your F-1 student visa or if there are changes in your academic plans.  However, if you continue to maintain F-1 student visa status, you may not necessarily make use of the TPS benefits.  However, the TPS regulations suspend certain requirements for on-campus and off-campus employment. Thus, F-1 students granted employment authorization may be permitted to reduce their normal course load and work beyond 20 hours per week. Always consult with the DSO before taking off campus employment and make a special notation in the SEVIS record.

Q. Am I Eligible for In-State Tuition
A.  The first factor in paying for college is the tuition cost. State schools offer lower in-state tuition to state residents.  As the Washington Post has reported, some states, including Virginia, permit TPS students to pay in-state tuition fees at state colleges. Prospective students who are interested in matriculating at a school within their state college system should contact the school to learn if TPS status holders are eligible for in-state tuition. If so, the prospective student will also need to satisfy the school’s residency requirements.

Q. I want to continue my study at university or college. Is it necessary to meet f1 requirements or my TPS IN ENOUGH to continue my study?
A. If you wish to be able to switch to a work visa in the future, you should maintain your F-1 status. TPD only protects you from removal temporarily.  It will not allow you to change status in the future. Keep in mind you cannot change status from TPS while in the USA.

Q. Can I apply for another immigration benefit along with TPS or after my TPS application is approved?
A. Yes. And you should do so if you are eligible for a more lasting and established form of immigration relief, such as asylum, a green card through marriage or another family relationship to a U.S. citizen or permanent resident, or even a green card through the diversity visa lottery. One of the benefits of TPS is that, if granted, you will receive your employment authorization document fairly quickly. So it is worthwhile to apply for TPS while you investigate the other immigration options that might be available to you.

Q: What will happen to my current immigration status if I obtain TPS? Can I apply for any other immigration status if I receive TPS?
A: TPS will not affect your current valid immigration status.  Your status will remain valid as long as it is does not expire and you continue to follow the conditions of that status. Even as a TPS holder, you may apply for any other immigration status for which you are eligible. An application for TPS will have no effect on your application for any other immigration benefit.

Q. Will I ever have to reapply or reregister for TPS?
A. Most likely, yes. If USCIS redesignates NEPAL for TPS and you want to remain in the United States, in order to maintain your status, you may have to reregister for TPS (and pay associated fees).

Q. Can I travel outside the U.S. while my application is awaiting a decision? Can I travel after my application is approved?
A. You can travel, but you may want to seek legal advice before leaving if you have ever been unlawfully present in the United States.  If you have ever entered in the U.S. without authorization or remained past the expiration date of your visa or status, you may be deemed inadmissible when attempting to reenter — and that’s true even if you are a TPS beneficiary with advance parole (a travel document described below).

If you are sure that you will not be found inadmissible upon return and you wish to travel outside the U.S., the way to apply is by using USCIS Form I-131, Application for Travel Document. You will need to submit this form prior to departing. Check the box marked “I am applying for an advance parole document to allow me to return to the United States after temporary foreign travel” and include a copy of your grant of TPS or your TPS application receipt notice.

Once your advance parole is approved, you will remain in Temporary Protected Status upon your return. Without such approval, you would be considered to have abandoned your TPS. However, it will remain your responsibility to respond to all requests from USCIS, even when traveling, so you might want to have a friend or relative keep an eye on your mail.

Your travel outside the U.S. must be “brief, casual, and innocent”. You cannot resettle in another country or return to your home nation without jeopardizing your TPS status.

Q. If my application for TPS is denied, can I appeal?
A. Yes, in most cases, as long as your case is not denied on criminal or national security grounds. You can file a Motion to Reconsider using Form I-290B, A Notice of Appeal or Motion. However, it is highly recommended that you consult with an experienced immigration attorney, who can advise you whether it is in your best interest to pursue an appeal and help you prepare a convincing case for one.

Q. I’m on H1B visa, can I apply for TPS and keep the H1B visa at the same time!
A. Yes, you can, and this is a rare instance where you can apply for TPS and still be on H-1B at the same time. However, make sure not to fall out of H-1B status so that you may pursue your permanent residency status under employment based provisions such as EB-2 or EB-3 categories etc.

Q.  Can you apply for H1B while on EAD (TPS)?
A. To be able to change status, you must be in valid non-immigrant status.  TPS is not such a status. Therefore, you would need to obtain an H-1B visa stamp abroad after the H-1B is approved, provided you do not trigger a bar due to unlawful presence such as the 3 and 10 year bar.  However, there may be some waivers due to the emergency situation in your country.

Q. If I have a H1B and my spouse is on H4 visa can that spouse benefit from TPS?
One can hold TPS at the same time as another visa status. Yes he/she can apply for TPS since he/she is from Nepal. The H4 will still remain H4 and the TPS will not affect the visa status as long as you are maintaining the H1B status. The TPS status will not affect getting green card.  However spouses on H4 can get EAD and work authorization since the new law went into effect in May 2015.  The TPS is like a backup fall back option if you somehow lose the H1B status or fall out of status and the TPS designation is still valid for Nepal.

Q: If a person already has an asylum application and has already applied for an Employment Authorization Document (EAD) through asylum, should that person still apply for TPS?
A. An individual may apply for TPS while having a pending asylum application.  In some cases, applying for TPS, in addition to asylum, may be best because the person might lose the opportunity to file for TPS if he or she does not apply during the 180-day TPS registration period that ends onDecember 22, 2015. If the person already has an EAD due to a pending asylum application, he or she does not need to apply for an EAD when filing for TPS. The applicant, however, must submit both the Form I-765 (without EAD fee) along with the Form I-821 and any fee, or fee waiver request. If the person is granted asylum as well as TPS, it is not necessary for him or her to re-register for TPS if the designation is extended since he or she will have asylum, as long as the person does not fail to maintain asylum status.

Q: If a Nepali national is in removal proceedings (and is not barred from TPS for criminal reasons) and applies for TPS and it is granted, are proceedings terminated or just continued until the “18” months expire?
A. Generally, when TPS is granted to an alien in removal proceedings, the proceedings are administratively closed.  However, if the alien is also pursuing protection or other forms of relief before the Immigration Court, the alien may request that the proceedings continue for a decision on those other forms of protection or relief.

Q: If an applicant is both a Nepali national and a national of another country, can the applicant apply for and receive TPS?
A: Yes. As long as the applicant can provide sufficient evidence that he or she is a Nepali national (e.g., passport, birth certificate and photo identification, and/or any national identity document from country of origin bearing a photo and/or fingerprint), then the applicant should be able to meet the nationality requirement. The applicant may also provide secondary evidence of nationality if he or she does not have primary evidence. USCIS may require the applicant to submit additional evidence or attend an interview if the evidence submitted is insufficient to demonstrate Syrian nationality. Being a dual national of Nepal and another country does not prevent an applicant from meeting the nationality requirement for TPS.

Q: Can the spouse and child of an individual Nepali eligible for TPS also apply as dependents or individually?
A: Each family member who believes he or she is eligible for TPS can and should apply during the initial registration period for Nepal. Unlike certain other immigration benefits, there is no “derivative” TPS status obtained as a result of being the spouse or child of someone else who is eligible for TPS.

Q: Will Nepalese who are out of status, but who obtain TPS, be issued NTAs and placed in removal proceedings once TPS for Nepal ends?
A. Maybe. Once TPS is terminated, usually meaning that the Secretary has determined it is safe for a country’s nationals to return to their home country, any former TPS beneficiary who has no other lawful status in the United States may be issued an NTA if he or she does not depart the United States. The same would be true for any non-U.S. citizen who no longer has lawful immigration status in the United States, regardless of whether that person previously had a temporary immigration status that has expired. The decision to place individuals in removal proceedings is an exercise of prosecutorial discretion and is handled on a case-by-case basis, based on enforcement priorities established by DHS and the Immigration and Customs Enforcement Service (ICE).

If you have any questions about whether you should file for TPS or asylum or both at the same time, we encourage you to contact us or consult with a competent immigration practitioner or recognized immigration organization for further advice specific to your situation.

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