Today, January 8, 2018, the Secretary of Homeland Security, Kirstjen M. Nielsen, announced her determination that termination of the Temporary Protected Status (TPS) designation for El Salvador was required pursuant to the Immigration and Nationality Act. To allow for an orderly transition, she has determined to delay the termination for 18 months, which means the designation will terminate on Sept. 9, 2019.
According to the notification published today, the Department of Homeland Security (DHS) states that the decision to terminate TPS for El Salvador was made after a review of the disaster-related conditions upon which the country’s original designation was based and an assessment of whether those originating conditions continue to exist as required by statute. The notice explains that the Secretary determined that the original conditions caused by the 2001 earthquakes no longer exist and, therefore, under the applicable statute, the current TPS designation must be terminated.
The Department of Homeland Security conducted extensive outreach to Salvadoran communities throughout the country and made its decision based upon careful consideration of available information, including recommendations received as part of an inter-agency consultation process. This includes, but is not limited to, community forums on TPS, panel discussions with Salvadoran community organizers, stakeholder teleconferences, regular meetings with TPS beneficiaries, news releases to the Salvadoran community, meetings with Salvadoran government officials, meetings at local churches, and listening sessions. The Secretary met recently with the El Salvadorian Foreign Minister and Ambassador to the United States, and spoke with President Sánchez Cerén.
Following the 2001 earthquake, Salvadorians were granted Temporary Protected Status (TPS), which has been renewed every 18 months since then. According to the DHS, many reconstruction projects in El Salvador have now been completed, including the rebuilding or repair of schools, hospitals and homes damaged by the earthquakes, and money has been provided for water and sanitation and to repair earthquake damaged roads and other infrastructure such that that substantial disruption of living conditions caused by the earthquake no longer exist. The DHS statement also noted that the U.S. government has deported more than 39,000 Salvadorans in the past two years, demonstrating, it said, “that the temporary inability of El Salvador to adequately return their nationals after the earthquake has been addressed.”
To allow for an orderly transition, the effective date of the termination of TPS for El Salvador will be delayed 18 months (until September 19, 2019) to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible.
Estimates differ for exactly how many immigrants the decision will affect. DHS officials said 262,500 Salvadorans have been granted TPS permits, but activists and experts have put the number of Salvadorans who could lose protections closer to 200,000, noting that official statistics likely include people who are no longer in the program because their immigration status has changed or they have left the United States. Immigrant advocates, Salvadoran government officials and many others had implored Nielsen to extend the TPS designation, citing the country’s horrific gang violence and the potentially destabilizing effect of so many people being sent home. Others urged her to consider the approximately 190,000 U.S.-born children of Salvadoran TPS recipients. Their parents must now decide whether to break up their families, take their entire families back to El Salvador, or stay in the United States and risk deportation.
Senior DHS officials told reporters Monday that the families would have to make that decision, and that the effect on American businesses, among other potential consequences of the TPS decision, were not part of Nielsen’s decision-making process. DHS state that it is up to Congress to determine a remedy. “Only Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status of those currently protected by TPS who have lived and worked in the United States for many years,” the DHS statement read. “The 18-month delayed termination will allow Congress time to craft a potential legislative solution.”
Trump administration officials have repeatedly said they considered the TPS program an example of American immigration policy gone awry, noting that when Congress created the designation in 1990, its purpose was to provide “temporary” protection from deportation following a natural disaster, armed conflict or other calamity.
Salvadorans with TPS will be required to re-register for TPS and apply for Employment Authorization Documents in order to legally work in the United States until the termination of El Salvador’s TPS designation becomes effective on Sept. 9, 2019. The re-registration period is announced through a Federal Register notice.
Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or firstname.lastname@example.org.