Law Offices of Giselle M. Rodriguez, PLLC / By Deen Haleem, Legal Intern
On Jul. 7, 2021, Haiti’s President, Jovenel Moise, was murdered. This destabilizing event occurred amid a backdrop of a declared “revolution” by infamous ex-police officer Jimmy Cherizier, which has caused a great deal of violence in the country. This violence has exacerbated the “dire food insecurity” ravaging Haiti already by creating “bottlenecks on food and fuel supplies.” The murder of President Moise is likely to make these ongoing crises even worse and inflame the present conflict between the Haitian government and the groups currently fighting against it. Moreover, the interim government has declared a new State of Emergency after already declaring one on May 24, 2021, due to the Coronavirus. With the situation progressing as it is, this is becoming an incredibly difficult time for Haiti and those of Haitian descent in other parts of the world.
What TPS Is
For Haitians living in the U.S., they will have the opportunity to apply for Temporary Protected Status (TPS) and remain in the United States to live and work. TPS is a status that, in some cases, can lead to a Green Card. It is a designation the U.S. created for those who cannot return to their home countries due to extreme turmoil. It is initially granted for 6, 12, or 18 months and can be extended indefinitely at the U.S. Government’s discretion.
Once someone submits their application for TPS, USCIS will conduct a preliminary review. After this review, USCIS might decide an applicant is “preliminarily eligible.” They won’t officially have TPS, but at this point:
- They are not removable from the U.S. and may not be accused of residing in the U.S. illegally. They also are not at high risk of being detained
- They can receive an Employment Authorization Document and legally work in the U.S.
- They may receive travel authorization
If they are later approved for TPS, they will receive the above benefits and:
- Can not be detained by U.S. Department of Homeland Security
- May be able to apply for a Green Card if you are otherwise eligible (more on this later)
Who Qualifies for TPS
To qualify for TPS, one must: [Following quote taken from USCIS webpage]
- Be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country;
- File during the open initial registration or re-registration period, or you meet the requirements for late initial filing during any extension of your country’s TPS designation (Late initial filers see ‘Filing Late’ section below);
- Have been continuously physically present (CPP) in the United States since the effective date of the most recent designation date of your country; and
- Have been continuously residing (CR) in the United States since the date specified for your country. [July 29, 2021 in the case of Haiti]. The law allows an exception to the continuous physical presence and continuous residence requirements for brief, casual and innocent departures from the United States. When you apply or re-register for TPS, you must inform USCIS of all absences from the United States since the CPP and CR dates. USCIS will determine whether the exception applies in your case.
One must also show continuous physical presence since August 3, 2021. While continuous residency and physical presence may sound similar, there is a slight difference between them. Specifically, physical presence does not mean residence. One could be outside the United States and demonstrate their physical presence by showing payment receipts for a house or apartment. They could also show pay stubs covering the time in which they’re abroad. However, any time outside the United States where a person has no “presence” (job, house, children in school, membership in groups, etc.) would violate the continuous physical presence requirement. The continuous residency requirement is even more strict and requires that individuals live in the United States. As such, any travel outside the U.S. would show that a person does not have continuous residency.
Fortunately, even those who have traveled abroad, they may still apply for TPS as long as they can show that:
- Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence
- The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and
- The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.
Importantly, a person is not eligible for TPS if they: [Following quote taken from USCIS webpage]
- Have been convicted of any felony or two or more misdemeanors committed in the United States;
- Are found inadmissible as an immigrant under applicable grounds in INA section 212(a), including non-waivable criminal and security-related grounds;
- Are 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;
- Fail to meet the continuous physical presence and continuous residence in the United States requirements;
- Fail to meet initial or late initial TPS registration requirements; or
- If granted TPS, you fail to re-register for TPS, as required, without good cause.
Finally, if someone has missed any of the prior deadlines to re-apply for TPS (the most recent reapplication deadline ended Mar. 19, 2018), they may still re-apply for TPS but must include the reason for their late application. After this, USCIS will determine if they had “good cause” to reapply late.
Life After Obtaining TPS
Once one has TPS, they must continually reapply to extend their TPS every time the U.S. Government creates a new registration period. As mentioned, these periods can be as short as six months and as long as 18 months. Not reapplying in these periods does not prevent one from obtaining TPS in the future, but it does mean they will have to show “good cause” for not applying. There is no set definition for good cause, but medical emergencies of an individual or family member or evidence that you were misinformed about TPS are all examples of causes that might be accepted.
One final thing to note about TPS for Haitians in the U.S. is the possibility of obtaining a Green Card or another non-immigrant status. A recent Supreme Court decision has confirmed that anyone who received TPS after entering the country illegally will not be eligible for a Green Card. While they are still eligible for TPS, they won’t be able to become a permanent resident of the U.S. if they didn’t enter the U.S. legally. This means that they will have to return to their home country at the end of their protected status. Fortunately, this ruling does not bar all those with TPS from obtaining a Green Card or Citizenship. As long as someone entered the country legally and falls into one of the following eligibility categories found here (https://www.uscis.gov/green-card/green-card-eligibility-categories), they will be able to apply for a Green Card. Moreover, there is still some hope for those with TPS who did not enter the county legally, as there is currently pressure on Congress to pass an immigration reform bill. If this pressure leads to the passage of a bill, said bill might provide a pathway to citizenship or a Green Card for all people with TPS, regardless of how they came here.