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U.S. Immigration Response to Haitian Earthquake

Client Alert

January 28, 2010

We at Proskauer share in the horror and concern that the tragic events in Haiti have generated around the world, and think it's important to share with clients and friends of the Firm what steps our government has taken from an immigration perspective. In the wake of the catastrophic earthquake that struck Haiti on January 12th, the U.S. government has responded with temporary immigration relief efforts to assist Haitians who are currently in the U.S., as well as some individuals who are in Haiti. Outlined below are the key immigration initiatives that are available to date. The immigration professionals at Proskauer are available to help various organizations with efforts related to these initiatives, and you can contact us if you have questions about them.

Temporary Protected Status
On January 15th, Department of Homeland Security’s (DHS) Secretary, Janet Napolitano, announced that Temporary Protected Status (TPS) would be available to Haitian nationals who have been in the U.S. continuously since January 12, 2010. TPS may be granted to eligible nationals of a country designated by the U.S. government that is experiencing ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions, that prevent these nationals from returning safely back to that country. Other countries that are currently designated for TPS include El Salvador, Nicaragua, Somalia, and Sudan.

TPS may prove beneficial to the estimated 100,000 to 200,000 Haitians who are now in the U.S. on a temporary basis, or without authorization. Haitians who are granted TPS will be allowed to remain in the U.S. and receive legal work authorization for the next 18 months, and will not be subject to deportation from the U.S. The U.S. government can extend the TPS designation for Haiti beyond the initial grant of 18 months. However, TPS does not lead to permanent resident status or confer any additional immigration benefit.

It is important to highlight that TPS will only apply to those individuals who were in the U.S. as of January 12, 2010, and is not available for Haitians who were in Haiti during the earthquake.

To qualify for TPS, an individual must meet certain eligibility requirements:

  • The individual must be a national of Haiti, or a person without nationality who last habitually resided in Haiti. To prove nationality, a TPS applicant may submit a copy of either his Haitian passport or his birth certificate. If an individual cannot provide this documentation, USCIS may accept secondary evidence, such as a baptismal certificate from Haiti and sworn affidavits from close family members attesting to the date and place of the individual’s birth. To prove that an individual has no nationality but last resided in Haiti, the individual must provide a statement explaining why he is stateless, along with documentation demonstrating that he last habitually resided there.

  • The individual must have continuously resided in the U.S. since January 12, 2010, and have been continuously physically present in the U.S. since January 21, 2010, the date DHS published notice designating Haiti eligible for TPS. Evidence may include letters from employers, rent receipts, payroll stubs, bank statements, and school records.

Certain individuals may not be eligible for TPS because of past criminal convictions or other criminal and security-related bars.

  • TPS is barred to any individual who has been convicted of any felony, or two or more misdemeanors. Definitions of felony and misdemeanor convictions can vary from state to state. DHS has already issued guidance that certain New York traffic infractions and other violations should not be considered disqualifying misdemeanors for purposes of TPS, because this would be in conflict with the humanitarian purpose of the TPS program.

  • TPS is also barred to any individual who has been convicted of, or has admitted to, a single misdemeanor or lesser violation in connection with a controlled substance offense, or a crime involving moral turpitude that makes the individual inadmissible.

  • TPS may also be barred to any individual who is inadmissible for other crime-related grounds, including, but not limited to: drug trafficking; drug abuse; prostitution; immigration fraud; and alien smuggling. Some of these grounds may be waived for humanitarian purposes.

  • TPS is also barred to individuals who have participated in the persecution of others or who have engaged in terrorist activity.  

It is critical that any TPS applicant with a criminal background consult an immigration professional to determine his eligibility for the status.

A TPS applicant may request an Employment Authorization Document (EAD) as part of his application. Once granted TPS, an individual may also apply for a travel document called “Advance Parole” in order to travel outside of the U.S. during the validity of the Parole document. However, anyone contemplating travel outside of the U.S., even those with an approved Advance Parole, should seek legal advice before leaving the U.S., since a departure from the U.S. in certain circumstances may impact an individual’s ability to return to the U.S., or his right to obtain immigration benefits in the future.

The 180-day TPS registration and application process runs from January 21, 2010 through July 20, 2010. The registration process requires applicants to submit applications for TPS status and employment authorization with supporting documentation and fees. Applicants may request a waiver of the government filing fees if they are unable to pay the required amounts.

Suspension of Deportations to Haiti
DHS has halted all deportations to Haiti. Individuals who have been issued Orders of Supervision pursuant to stays of removal may apply for an employment authorization document.

Humanitarian Parole and Haitian Orphans
The U.S. government is coordinating efforts to allow certain orphaned Haitians to enter the U.S. Humanitarian parole is an extraordinary measure granted by DHS to bring otherwise inadmissible individuals into the U.S. on account of urgent humanitarian reasons or emergencies. DHS is now authorizing humanitarian parole on a case-by-case basis to certain Haitian children who do not have visas to come to the U.S., but who are being adopted by U.S. citizens.

Applications to Change or Extend Nonimmigrant Status
USCIS has instructed its officers to favorably adjudicate applications for change or extension of nonimmigrant status where the applicant can demonstrate that the January 12th earthquake is the basis for his inability to return to Haiti. Under USCIS guidance, a Haitian in lawful nonimmigrant status on January 12, 2010 is also permitted, until March 12, 2010, to file his application to change or extend nonimmigrant status, even if his lawful status has already expired.

Haitian temporary business or pleasure visitors who are unable to return home, may apply for an extension of their B-1 or B-2 status for an additional six months. However, B-1 and B-2 visitors are not permitted to work. Eligible Haitian visitors who want or need work authorization should apply for TPS.

Extension of Parole in the U.S.
Haitians who have been paroled into the U.S. may file for an extension of their parole with a local USCIS district office. The individual will need to present a Form I-94 Arrival-Departure Card that has an expiration date between January 12, 2010 and March 12, 2010, and must demonstrate that the earthquake has prevented the individual’s return to Haiti.

Automatic Extension of Advance Parole
For individuals of any nationality who are in Haiti with Advance Parole documents that expire between January 12, 2010 and March 12, 2010, their travel documents are automatically extended to March 12, 2010.

F-1 Student Employment Authorization
F-1 students from Haiti may apply for off-campus employment authorization to cover the costs of engaging in a full course of study.

Expedited Processing of Some Applications/Petitions
Expedited adjudication procedures are in place for Advance Parole applications that are filed by Haitians in the U.S. so that these individuals will have the ability to travel quickly to Haiti for emergent reasons, and then return to the U.S.

USCIS will also expedite the processing of Form I-130 relative petitions (where visa numbers are available), and Form I-730 Refugee/Asylee relative petitions for children from Haiti.

In conclusion, USCIS has acted quickly in response to the devastation in Haiti to provide immigration benefits that may help Haitians in the U.S., and limited relief for people who are in Haiti. Proskauer’s immigration professionals have volunteered to assist organizations that support Haitians in navigating these rules. If you should encounter anyone needing assistance, or have any questions about the various initiatives, please contact one of our immigration attorneys.

We will continue to monitor this ever-changing situation, and will bring you updates as warranted.