By Hector A. Chichoni, Esq.
On January 29, 2025 (published in the Federal Register on February 5, 2025), DHS Secretary Kristi Noem decided to vacate the January 17, 2025, decision of former DHS Secretary Alejandro Mayorkas regarding Temporary Protected Status (TPS) for Venezuelans. Secretary Mayorkas’ decision on TPS for Venezuelans extended the 2023 TPS designation for 18 months and allowed a consolidation of filing processes such that all eligible Venezuelan TPS beneficiaries (whether under the 2021 or 2023 designations) to obtain TPS through the same extension date of October 10, 2026, and to extend certain Employment Authorization Documents (EADs). Secretary Noem’s cancellation or vacatur is effective immediately and impacts a large number (more than 300,000) of Venezuelans granted TPS under the 2023 redesignation. For Venezuelans on the 2023 redesignation, the TPS status will expire on April 7, 2025, and the employment authorization on April 2, 2025. The termination, however, does not impact Venezuelans granted TPS under the 2021 designation. Secretary Noem has until July 12, 2025, to decide whether to extend the 2021 TPS designation for Venezuelan beneficiaries. But, if not extended, the 2021 designation will terminate September 10, 2025. The termination, however, is a bit confusing because it is said to officially go into effect 60 days after its publication in the Federal Register.
Based on Secretary Noem’s decision, USCIS will no longer accept Venezuela TPS re-registration applications (Form I-821) and Applications for Employment Authorization (Form I-765) filed under former Secretary Mayorkas’ January 17, 2025 decision on redesignation. Moreover, USCIS will cease processing submitted applications and return the filing fees. Even further, USCIS will cancel EADs issued to Venezuelans in TPS and approval notices issued with an October 2, 2026 expiration date.
The TPS cancellation for Venezuelans is likely to have an economic impact for both employers and families. Importantly, July 2025 is not far away, and although Venezuelan employees with TPS may be work-authorized for now, employers should be strategizing and preparing for the potential cancellation of the 2021 TPS designation as well. Providing individual solutions for each affected employee is not an easy task, because everyone’s situation will have to be analyzed case-by-case.
In general, Venezuelans in TPS may be eligible to change to other non-immigrant status, including visitor status and employment-based visa statuses, but could be a costly proposition for employers and employees alike.
Additionally, there are some reports that Immigration Customs Enforcement (ICE) has also increased the number of inspections and I-9 audits for employers in industries dependent on unskilled labor and in certain areas known to employ, among others, Venezuelan nationals (i.e. Doral, FL). The effects of TPS cancellation for Venezuelans will also have an impact not only from an immigration enforcement perspective but also create a burden on U.S. employers.
The American Immigration Lawyers Association (AILA) recently issued a practice alert on the latest of TPS for Venezuela stating that:
For employers and employees, the consequences of the vacatur/termination notices include:
As a result of the vacatur, Venezuelan nationals granted TPS pursuant to the 2021 designation are work authorized until September 10, 2025, unless an extension is granted.
Venezuelan nationals granted TPS pursuant to the 2023 designation are work authorized only until April 2, 2025.
Individuals affected by the vacatur/termination notices may be screened for asylum eligibility or other appropriate forms of relief which will enable them to apply for work authorization, but obtaining the required EADs may take months, if not longer.
If litigation related to the non-renewal of TPS for Venezuela results in an injunction, affected individuals may be able to return to work
So, what does the Temporary Protected Status cancellation mean for employers? It means this: There is a great deal of work to do, and employers cannot afford to fail to take proactive steps to ensure compliance. U.S. employers and HR professionals cannot predict exactly how the US immigration changes are going to play, but we all know that the best employers and HR professionals can do is to prepare to take all possible early actions that can prevent problems.
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