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How Might TPS Affect my Nonimmigrant Status?

By March 17, 2021Immigration
United States Capitol

In March of 2021, Secretary of Homeland Security Alejandro Mayorkas designated both Venezuela and Burma (Myanmar) for Temporary Protected Status, or TPS, in light of the “complex humanitarian criss” occurring in both countries. TPS will allow those who are nationals of Burma or Venezuela — or those who are “without nationality who last habitually resided” in either Burma or Venezuela — to legally remain in the U.S. for an 18-month period starting in March 2021.

TPS is a temporary status that the Secretary of Homeland Security can grant to individuals who are already in the United States and who cannot safely return to the country or region of which they are nationals or where they reside. See here for additional information on how to qualify for TPS and what the benefits of TPS. And here for additional information on travel restrictions while on TPS status.

Since an individual must already be in the United States in order to qualify for TPS, it stands to reason that many individuals who receive TPS already have a nonimmigrant status, such as B-2 visitor status or F-1 student status. This blog post explores some of the aspects of this somewhat unusual situation in which a nonimmigrant is within the U.S. with more than one “status.”

Does TPS cause an individual to lose any nonimmigrant status they had before receiving TPS?

No, an individual who already has nonimmigrant status does not automatically lose it by receiving TPS. The Immigration and Nationality Act makes clear that the U.S. government cannot “require any alien, as a condition of being granted … to relinquish nonimmigrant or other status the alien may have.” Put different, the Act states, “The granting of temporary protected status … shall not be considered to be inconsistent with the granting of nonimmigrant status under this Act.”

However, the individual must comply with all requirements associated with any separate nonimmigrant status they might have.

Though an individual does not automatically lose his or her separate nonimmigrant status as a result of receiving TPS status, the individual must be careful to maintain their separate nonimmigrant status by complying with any requirements associated with it.

For example, a Venezuelan national, Angela, is studying in the U.S. on an F-1 visa. Angela becomes eligible for TPS as a result of the Secretary of Homeland Security’s declaration of Venezuela as a TPS-designated country. She applies for and is granted TPS status. As long as Angela complies with the requirements of both the F-1 visa and TPS, she would maintain both. However, if she were to fail to abide by the requirements of the F-1 status, she risks losing it. (For more information on the requirements associated with the F-1 visa, see our earlier post here.)

Could an individual with TPS violate their separate nonimmigrant visa status by working on TPS employment authorization?

Possibly. The requirement that an individual who has both TPS and a separate nonimmigrant status comply with the requirements of both can create tension, particularly when it comes to work authorization.

Continuing with our earlier example is helpful: Angela has received TPS and also maintains F-1 student status. She soon receives employment authorization through TPS. Given that F-1 status places restrictions on where and when Angela can work, would those restrictions apply to her use of employment authorization received through her TPS status?

The answer is that it very likely would, and Angela should be careful not to violate her F-1 status when pursuing work.

Those who hold both TPS and a separate nonimmigrant status would be well advised to speak with a qualified immigration lawyer in order to carefully navigate the restrictions in place, particularly as they relate to work authorization.

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