On March 8, 2021, Secretary Alejandro Mayorkas of the Department of Homeland Security (DHS) declared that Venezuelans in the United States may be able to qualify for humanitarian protection known as Temporary Protected Status (TPS). DHS states that “due to extraordinary and temporary conditions in Venezuela that prevent nationals from returning safely, including a complex humanitarian crisis marked by widespread hunger and malnutrition, a growing influence and presence of non-state armed groups, repression, and a crumbling infrastructure,” Venezuelans should be given TPS. The United States has previously designated other countries for TPS due to ongoing armed conflict (Syria), environmental disasters (Haiti, El Salvador, Honduras), or extraordinary and temporary conditions. Qualifications for TPS were published in the federal register notice by United States Citizenship and Immigration Services (USCIS).
Before detailing how TPS works, President Trump had previously established Deferred Enforced Departure (DED) for Venezuelan nationals on January 19, 2021, preventing removal and deportation of Venezuelans while also allowing Venezuelans to seek employment authorization documents through July 20, 2022. DED, unlike TPS, can be rescinded at any time by the president and is not a legal status because it is an administrative stay of removal pursuant to the president’s constitutional authority to conduct the foreign relations of the United States. DED does not require an application form to obtain DED coverage, and Venezuelans present in the United States on January 19, 2022 can still seek an employment authorization document under DED by filing the employment authorization application with USCIS. The Biden administration has decided not to rescind DED and details how to obtain DED coverage in the federal register.
How to Qualify for the Temporary Protective Status for Venezuelans?
In order to qualify for TPS, which is a legal status and cannot be rescinded by the President once it is designated, Venezuelan nationals must apply with USCIS before September 9, 2021. An individual must prove the following requirements that he or she:
- Is a national of Venezuela, or a person without nationality who last habitually resided in Venezuela;
- File between March 9, 2021 and September 5, 2021;
- Has been continuously physically present (CPP) in the United States since March 9, 2021; and
- Has been continuously residing in the United States sinceMarch 8, 2021.
A Venezuelan national would not be eligible for TPS if he or she:
- Has been convicted of any felony or two or more misdemeanors committed in the United States;
- Is found inadmissible as an immigrant under applicable grounds in INA section 212(a), including non-waivable criminal and security-related grounds;
- Is subject to any of the mandatory bars to asylum. These include, but are not limited to, participating in the persecution of another individual or engaging in or inciting terrorist activity; or
- Fails to meet the continuous physical presence and continuous residence in the United States requirements.
Even if a Venezuelan national does not register by September 5, 2021, there are late initial filing requirements that may allow someone to still register for TPS. For instance, if a Venezuelan had filed for an asylum application and were denied his or her application, they would have the opportunity to register for TPS within 60 days of that denial in the future, provided they meet the TPS requirements. Another example is whether the individual was a Venezuelan child during this initial registration period – that individual could still apply in the future even after they turn 21 years of age.
One benefit of TPS for many Venezuelans is that it may help prevent being placed in removal proceedings in certain instances. Many Venezuelans have applied for asylum, seeking protection from the Maduro authoritarian regime. If a USCIS officer does not believe that the applicant warrants being granted asylum, then they will refer that applicant to the Immigration Court for removal proceedings to prove their asylum matter in front of an Immigration Judge, who can order the applicant removed if the judge denies their asylum. If the Venezuelan national has been granted TPS as a legal status, USCIS will not refer the case to Immigration Court.
USCIS requires a TPS registration filing fee of $50 for each application plus $85 for each individual older than 14 years of age for biometrics (fingerprinting and photographs for a background check). If the applicant wants to obtain employment authorization, USCIS requires a filing fee of $410 if they are between 14 and 65 years of age, whereas there is no filing fee for individuals younger than 14 and older than 65. If you are Venezuelan and believe that you may qualify, please reach out to our office for an initial consultation.
