Overview and Applicable Guidelines.

March 9, 2021, President Biden’s administration declared Venezuela as a country subject to “Temporary Protected Status” [TPS], a designation that lasts until September 9, 2022.  Dep’t of Homeland Security, US Citizenship and Immigration Services, Designation of Venezuela for Temporary Protected Status and Implementation of Employment Authorization for Venezuelans Covered by Deferred Enforced Departure, 86 Fed. Reg. 13,574 (Mar. 9, 2021), available at https://www.govinfo.gov/content/pkg/FR-2021-03-09/pdf/2021-04951.pdf (accessed Mar. 15, 2021).  This was accomplished by an announcement in the Federal Register, an official U.S. government publication containing national regulations issued by Executive agencies.  Id..  This post details the criteria a Venezuelan applicant must meet in order to qualify for TPS status.

TPS is governed by Section 244 of the Immigration and Nationality Act, codified at 8 U.S.C. § 1254a.  8 U.S.C. § 1254a(a)(1)(A) provides that the Attorney General may designate a country for TPS, and “shall not remove the alien from the United States during the period in which such status is in effect.”  In addition, If a TPS period is designated, the Attorney General “shall authorize the alien to engage in employment in the United States,” and provide a procedure for doing so.  18 months is the maximum amount of time that TPS may be designated.  INA § 244(b)(2)/8 U.S.C. § 1254a(b)(2); however, at least 60 days before the period expires, the Attorney General must announce if TPS designation will be renewed.  Id. at § (b)(3)(A).  Venezuela is designated for TPS from March 9, 2021 until September 9, 2022.  86 Fed. Reg. 13,575 (Mar. 9, 2021).

The official, original legal source of government information about TPS is contained in the March 9, 2021 Federal Register notice.  However, reliable information about the legal (and procedural) requirements can also be found at the USCIS website.  USCIS, Temporary Protected Status Designated Country: Venezuela, https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-venezuela (accessed Mar. 15, 2021). General eligibility for TPS is governed by INA Section 244(a)–(i)/8 U.S.C. § 1254a(a)–(i), and also by the regulations at 8 C.F.R. § 244 (duplicated at 8 C.F.R. § 1244).  These general requirements apply to all applicants for TPS, regardless of their country of origin.

Eligibility: Deadlines and Continuous Residence.

According to the above sources, to be eligible for TPS, an applicant must

  • be a citizen or national of Venezuela;
  • apply by the expiration date of September 5, 2021;
  • have been present in the US since March 9, 2021 or earlier;
  • have “continuously resided” in the US since March 8, 2021 or earlier.

Children and spouses of TPS applicants cannot apply as derivatives; instead, they must also individually meet the criteria for TPS.  Matter of Duarte-Luna, 26 I. & N. Dec. 325 (BIA 2014). However, if they miss the initial registration period, AND TPS is renewed, spouses and children may apply past the initial deadline—if their relative qualified for TPS at the time the relationship commenced.  8 C.F.R. § 244(f)(2)(iv).  If TPS for Venezuela should be renewed, certain other applicants may also apply for TPS past the deadline, if they meet the criteria listed in 8 C.F.R. § 244.2(f).  These categories include applicants with pending asylum applications.  8 C.F.R. § 244.2(f)(ii).

Continuous residence is not broken by “brief, casual and innocent” departures, or a “brief temporary trip abroad required by emergency or extenuating circumstances”.  INA § 244(c)(4)/8 U.S.C. § 1254a(c)(4).  8 C.F.R. § 244.1 further defines “brief casual and innocent” as follows:

(1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence;

(2) 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

(3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.

Eligible for TPS Even though “Inadmissible.” 

In general, an applicant for TPS must be “admissible as an immigrant,” which means none of the grounds at INA § 212/8 U.S.C. § 1182 apply.  INA § 244(c)(1)(A)(iii)/8 U.S.C. § 1254a(c)(1)(A)(iii); 8 C.F.R. § 244.2(d), 8 C.F.R. § 1244.2(d). However, there are certain exceptions.  The following grounds of inadmissibility do NOT disqualify an applicant from TPS:

  • INA § 212(a)(4), “public charge” inadmissibility;
  • INA § 212(a)(5)(A) and (B), applicants seeking to enter “for the purpose” of providing labor not authorized by the US government;
  • INA § 212(a)(7)(A)(i), applicants who entered with authorization, but who are not currently in possession of a valid unexpired visa (or comparable authorization to remain).

This means that those who entered the US on a visa before March 9, 2021; have not left; have no criminal convictions; and are not national security risks, will generally qualify to apply for TPS, even though their visas have expired.  Many pending asylum applicants who fled the Maduro regime fall into this category. 

Ineligible for TPS Under All Circumstances: Designated Criminal Convictions. 

Under INA § 244(c)(2)(B)/8 U.S.C. § 1254a(c)(2)(B); and its implementing regulations, 8 C.F.R. § 244.4 (duplicated at 8 C.F.R. § 1244.4), two categories of applicants are barred from receiving TPS.  The first category includes applicants:

  • convicted of a felony;
  • convicted of two or more misdemeanors.

8 C.F.R. § 244.1 elaborates: “Felony means a crime committed in the United States, punishable by imprisonment for a term of more than one year, regardless of the term such alien actually served, if any, except: When the offense is defined by the State as a misdemeanor and the sentence actually imposed is one year or less regardless of the term such alien actually served. Under this exception for purposes of section 244 of the Act, the crime shall be treated as a misdemeanor.”

A TPS “misdemeanor” is: “[A] crime committed in the United States, either: (1) Punishable by imprisonment for a term of one year or less, regardless of the term such alien actually served, if any, or (2) A crime treated as a misdemeanor under the term “felony” of this section.”  This means that even if a state crime labeled “misdemeanor” has a maximum sentence of more than a year, if the applicant was actually sentenced to less than a year, the offense is not a “felony” for TPS purposes.

Also, an offense is not considered a “misdemeanor” if the penalty for it has a maximum of five days in prison.  Id..  It should be noted, though, that at least one court, in the Eight Circuit, has held that a municipal traffic offense, even though not technically a state or federal “crime,” is a misdemeanor for TPS purposes if the city provides a 5 day (or more) prison sentence as a possible penalty.  Rubio v. Sessions, 891 F.3d 344 (8th Cir. 2018).

Ineligible for TPS Under All Circumstances (2): Asylum Ineligibility.

The second category designated for inviolate TPS eligibility includes any applicant “described in [INA] section 208(b)(2)(A)”—which describes ineligible categories of asylum applicants.  8 U.S.C. § 1158(b)(2)(A).  That section denies asylum for applicants when:

“(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;

(ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;

(iii) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;

(iv) there are reasonable grounds for regarding the alien as a danger to the security of the United States;

(v) the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this title or section 1227(a)(4)(B) of this title (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 1182(a)(3)(B)(i) of this title, the Attorney General determines, in the Attorney General’s discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or

(vi) the alien was firmly resettled in another country prior to arriving in the United States.”


Ineligible for TPS under All Circumstances (3): CFR Designated Offenses.

INA § 244(c)(2)/8 U.S.C. § 1254a(c)(2), and its companion regulation at 8 C.F.R. § 244.3(c), (duplicated at 1244.3(c)) designates several other categories of criminal offenses that cannot be “waived,” meaning they per se disqualify an applicant for TPS.  These include offenses rendering the applicant “inadmissible” under:

  • convictions, admissions of committing, or admissions of the essential elements of a “crime of moral turpitude” (INA § 212(a)(1)(A)(i)(I);
  • convictions, admissions of committing, or admissions of the essential elements of a crime “relating to a controlled substance” (INA § 212(a)(1)(A)(i)(II) (except for a single offense involving 30 grams or less of marijuana for individual use);
  • anyone the Attorney General has “reason to believe” is an illicit trafficker in controlled substances (INA § 212(a)(2)(C);
  • national security and terrorism risks under INA § 212(a)(3)(A)–(D);
  • those who assisted in Nazi persecution under INA § 212(a)(3)(E).

“Crime of moral turpitude” (also known as “CIMT”) is a complex and highly developed phrase in U.S. immigration law, governed by a multitude of cases.  The term does not usually apply to DUIs, but it generally covers offenses involving intentional fraud, aggravated assault, domestic assault, and other serious offenses.  It is important to consult with an experienced crimmigration attorney if the applicant believes their offense could be a CIMT.  Finally, one misdemeanor conviction, in which the actual sentence was 6 months or less, does not qualify as a CIMT under the “petty offense” exception.  INA § 212(a)(2)(A)(ii)(II); 8 U.S.C. § 1158(a)(2)(A)(ii)(II0.

Ineligible for TPS without a Waiver: All Remaining Grounds of Inadmissibility.

Last but not least, any and all remaining grounds of inadmissibility, not yet mentioned above, may be waived, though waiver applicants must submit a separate 601 waiver application with fee (or fee waiver request). Waivers are available “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”  INA § 244(c)(2)(A)(ii)/8 U.S.C. § 1254a(c)(2)(A)(ii); see also 8 C.F.R. § 244.3(b).  These include (but are not limited to):

  • INA § 212(a)(6)(A), inadmissible for entry without inspection/permission;
  • INA § 212(a)(6)(B), failure to attend removal proceeding;
  • INA § 212(a)(6)(C), misrepresentation of a material fact or of US citizenship;
  • INA § 212(a)(9), aliens previously removed, unlawfully present, OR present after previous immigration violations/removal.

This means that an applicant who has re-entered without authorization after being deported or receiving a removal order, OR an applicant who currently has an outstanding, final removal order that has not been executed, does technically qualify for TPS—if a waiver is granted.  However, such an applicant is subject to ICE enforcement measures unless and until TPS is granted, and after TPS expires.  Thus, an applicant in such circumstances is advised to consult an attorney before attempting to apply for TPS.

@Dr. Alicia Triche 2021