Termination of Temporary Protected Status for Haitian and Syrian Nationals

Action: A Supreme Court decision issued June 25 will allow the Administration to proceed with its termination of Temporary Protected Status (TPS) designations for nationals from Haiti and Syria.¹ The decision has immediate implications for about 356,000 individuals from Haiti and Syria in the US with potential implications for as many as 1.3 million people protected by the program.  

Trusted Insights for What’s Ahead^®

• Congress established TPS in 1990 to provide temporary relief from deportation and work authorization to foreign nationals present in the US who could not return to their home countries due to armed conflict, natural disasters, or certain other circumstances. Haiti received TPS in 2010 following an earthquake that caused widespread destruction in the country. Syria was designated in 2012 after violence against anti-government protesters.
•  At issue in the case was the scope of a provision in Federal law barring judicial review of TPS determinations. The challengers argued that while the law prohibits review of the government’s substantive TPS determination, it does not prohibit review of compliance with administrative procedural requirements. They also argued that the Administration’s decision regarding Haiti was motivated by racial animus in violation of the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.
• In addition to Haiti and Syria, the Administration has sought to terminate TPS for nationals of several other countries, though litigation has paused several of those terminations. The Court’s decision will likely allow those terminations to proceed, leaving only El Salvador, Lebanon, Sudan, and Ukraine with TPS designations. The government has not indicated whether it would extend those designations when they expire. (A designation for South Sudan remains in effect by court order).²
• In press remarks after the Court’s decision, the Secretary of Homeland Security indicated that those losing TPS should seek permanent residence or leave the country.³
• The Court’s decision comes amid ongoing debates about immigration policy. While the Administration has generally sought to reduce both legal and illegal entry into the US, concerns about impacts on labor availability have led to targeted accommodations in some cases. For example, the Administration recently announced that the H-2A temporary agriculture worker visa program would be expanded to cover dairy farms,⁴ previously exempt because dairy farm work is generally not seasonal.
• Congress is also considering options for addressing labor shortages in key sectors. For example, the chair of the House Agriculture Committee has introduced legislation that would provide a pathway to temporary legal status for undocumented immigrants who already work in agriculture.⁵
• What this means for business:  

  • Employers should assess potential workforce impacts. By some estimates, more than 830,000 TPS holders work in industries including construction, health care, retail, manufacturing, transportation, hospitality, and business services. Some affected employees may qualify for other work visas.
  • Employers should also review documentation to ensure compliance with applicable laws and regulations. 
  • Companies with material exposure to potential labor shortages from TPS visa holders should prepare contingency plans, including cross-training, recruiting pipelines, staffing alternatives, vendor and subcontractor review, and communications protocols for managers.