By: Maria M. Mihaylova, Natalia Gouz, Arielle J. Ratush
What is TPS?
TPS stands for “Temporary Protected Status.” It allows nationals from specific countries to stay in the United States for up to 18 months while their home country is engaged in an ongoing armed conflict, an environmental disaster, or other extraordinary and temporary emergency conditions. Countries currently designated for TPS include Burma, Haiti, Honduras, Syria, among several others. On March 3, 2022, the Secretary of Homeland Security, Alejandro N. Mayorkas, announced that Ukraine will be a TPS-designated country for 18 months.
My family and I are citizens of Ukraine. Are we eligible for TPS?
You can only apply for TPS as a Ukrainian national if (1) you are currently in the United States, and (2) you have been in the United States continuously since March 1, 2022, or earlier. Those who entered the US after March 1, 2022 are not eligible to apply. Those who plan to enter the US in the coming days or weeks are also not eligible to apply.
What are the benefits of TPS?
TPS allows for a national of a designated country to stay in the U.S. for 6, 12, or 18 months without risk of being detained or deported, even if they entered the US unlawfully. It also allows applicants to apply for work authorization (Employment Authorization Document or EAD), and advance parole for temporary travel outside the US.
If I am from Ukraine, do I get TPS automatically? Does my family get TPS automatically?
No. Those who are eligible will need to file Form I-821 with USCIS during a specific registration period. You will be able to file this form online.
Each eligible family member will need to file a separate Form I-821. TPS does not offer dependent status for spouses or children based on a primary applicant’s TPS application.
Certain applicants will also be able to file Form I-765 for work authorization and Form I-131 that provides permission to travel.
Has the registration period started yet? Can I apply for TPS now?
Not yet. Secretary Mayorkas announced that Ukraine’s 18-month TPS designation will go into effect when the next Federal Register notice is published.
What type of documents do I need to apply for TPS?
You will need to show:
- Proof of Identity & Ukrainian Nationality – passport, birth certificate, or any national identity documents that have your photo and/or fingerprint;
- Proof of Arrival to the U.S. before March 1, 2022 – passport stamp, I-94 record, airline receipts/tickets; and
- Proof of Continuous Residence in the U.S. – employment records, rent receipts, utility bills, school records, hospital records, etc.
- Please refer to Form I-821 Instructions for additional guidance on required documents.
Is there a filing fee?
Yes. First-time applicants for TPS will have to pay a $50 filing fee for each Form I-821 submitted, plus a biometrics (fingerprint) fee of $85 for all applicants over 14 years of age. However, applicants can apply for a fee waiver if they meet certain requirements.
What happens when the TPS designation period (18 months) ends?
The Department of Homeland Security can choose to extend the designation period for a TPS-designated country, depending on the ongoing crisis and its status. When the designation period ends, TPS holders will return to the immigration status that they held prior to receiving TPS, unless it expired. If a TPS beneficiary is not eligible for other immigration benefits and has no status, they will be considered undocumented and subject to removal proceedings.
I am currently attending school as an F-1 student. Should I consider TPS?
The response to this question is relatively complex and layered. While you may be concerned about your ability to remain in the United States on a long-term basis, applying for TPS while in F-1 status, including OPT has both advantages and disadvantages.
As a general rule, TPS should be relied on as a last resort. If you are an international student who is at the beginning of their undergraduate or graduate studies and have just arrived in the United States, TPS may not necessarily help you feel secure in the long run. As a student, you will be required to maintain a full-time course load and will still have your entire academic program ahead of you including potential opportunities for participating in Curricular Practical Training (CPT), working on campus, and, depending on your major, completing between 12 and 36 months of Optional Practical Training (OPT) after you receive your degree. In addition, if the situation in Ukraine has caused you financial hardship, additional F-1 “economic hardship” work authorization may be granted to you. These benefits may be at risk if you obtain TPS in order to avail yourself of the ability to work outside of the F-1 work options.
As TPS is not providing you with legal status, per se, you would not maintain your F-1 status if you take advantage of the work authorization permit that comes with TPS. If you do, you could be deemed in violation of your F-1 status and your school’s Designated School Official may need to terminate your F-1 status, leaving you solely at the mercy of a special designation that is given entirely in the US government’s discretion and can be taken away in the future.
When should I consider seeking TPS if I am here as an F-1 student?
Because taking advantage of TPS’ work authorization benefits may result in the loss of ability to maintain your F-1 status, the clearest example of F-1 students who may want to consider TPS at this stage would be those F-1 students who are no longer able to maintain or are about to lose their F-1 status. This can be due to a variety of circumstances, including but not limited to, the need for medical leave from school, inability to financially support yourself in the United States or cover your tuition, nearing the completion of your OPT time, or being in an authorized OPT period but not having an employer in the allowed 90 days of inactive employment.
In all the above circumstances, the F-1 student would be unable to or has already taken advantage of all the benefits the F-1 status could afford. Thus, seeking TPS will be merely securing their ability to remain in the US, allowing them to work, and protecting them from having to seek a third country until their home country is safe to return to.
If I apply for TPS, can I work under the work permit I get?
Yes, you can work on TPS, and the authorization is unrestricted and market-wide. However, considering the heavy price that TPS can have on your ability to maintain F-1 status or transition easily between visas, if you are considering seeking TPS solely for the work authorization to support yourself and your family in uncertain times, you may also want to first consider and explore applying for an F-1 work authorization based on extreme hardship you would suffer. Your Designated School Official (DSO) and international student advisor can discuss the option with you and potentially recommend and support your application especially if there is a substantial change in your existing conditions and ability to support yourself in the US. For example, for Ukrainian international students, this could mean an internal displacement of their family which causes the inability of the family to continue to send financial assistance to the student for the duration of the program. In the same vein, it could also be a Russian international student whose parents are no longer able to transfer funds to them due to economic sanctions that are currently in place and prevent banking operations between the countries.
Extreme hardship authorization must be ultimately recommended by your international student advisor, and therefore approval is highly discretionary. Despite this fact, it is a valid option for work authorization that was built into the F-1 regulations for a reason and does not jeopardize your F-1 status or ability to ultimately pursue OPT. Therefore, before committing to TPS as a solution to the current situation, every affected student should explore an F-1 work authorization based on their specific circumstances.
Can I change my status from TPS back to F-1 so I can use my OPT?
Unfortunately, if you take advantage of the TPS work authorization and work off-campus, you will be working in violation of the terms of your F-1 status. You would then lose that status and make it impossible down the road to try to change your status back to F-1 or take advantage of any potential F-1 work authorization.
I am in the US on a visitor (B-2) visa, and I do not believe I will be able to leave before my B-2 status expires, should I extend my B-2 stay or apply for TPS?
This decision should be made on a case-by-case basis. The benefits of applying for TPS include a longer period of permissible stay in the US (18 months and may be extended depending on how the situation in Ukraine develops). TPS also provides the option to apply for work and travel authorization. On the other hand, you can apply to extend B-2 status for up to 6 months only, cannot apply for work authorization, and cannot travel while the application is pending. As part of a B-2 extension application, you must document the availability of financial resources to cover your stay in the US. You can only apply for TPS if you were physically present in the US since March 1, 2022.
I am in the US, but my B-2 status has expired, can I apply to extend my B-2 status or apply for TPS?
See above. Note that you can apply for a B-2 extension even after your B-2 status expired; USCIS may excuse the lateness in filing the extension if you can demonstrate that the late filing was due to extraordinary circumstances beyond your control.
If I don’t have lawful status in the US, should I apply for TPS?
Yes, provided you meet the eligibility requirements for TPS. A grant of TPS would allow you to stay in the US without risk of removal, provide a basis to apply for work authorization and travel authorization for 18 months. Work authorization may be approved even before USCIS makes a final determination on the grant of TPS. An individual with a grant of TPS also cannot be detained by immigration authorities based on his or her immigration status in the US. But if TPS ends, immigration agencies are now aware of your presence in the US without lawful status and may initiate removal proceedings on this basis.
I am in the US either without status or with a visitor’s status, but my family filed an I-130 immigrant petition. Does it make sense to file for TPS?
It depends. If your I-130 is an immediate relative petition or you are the spouse of a green card holder and you have valid status, you can apply for adjustment of status. If you are the spouse of a US citizen, you can file the adjustment of status even if you do not have current valid status in the US. If you have a pending adjustment of status case filed based on a pending or approved I-130, it is not advisable to file for TPS. If you have a pending or approved I-130 but are not eligible for adjustment of status or immigrant visa processing, you may consider applying for TPS if you wish to remain in the US. In certain circumstances, TPS recipients may be eligible to adjust their status in the US.
I have a pending asylum case, can I apply for TPS?
Yes, TPS will not affect the pending asylum case. Also, denial of an asylum application does not affect your ability to register for TPS. If the asylum applications are denied while TPS is in effect, the TPS should remain in effect.
Please contact your Klasko Law attorney if you have any questions. For some situations related to the Ukraine conflict, the firm may be able to waive the consultation fee.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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