Legal immigration pathways to enter and remain in the United States have faced increasing uncertainty since January 20, 2025. One form of humanitarian immigration relief known as Temporary Protected Status (TPS) is no different.
Established by Congress in 1990, TPS protects from deportation foreign nationals who (1) are from a designated country, (2) are presently in the United States, and (3) maintained residence and presence in the United States since a given date. The Secretary of the Department of Homeland Security (DHS) has the authority to designate a country for TPS after finding that the country is experiencing an ongoing armed conflict, a natural disaster, or other extraordinary conditions that prevent the safe return of its nationals. These nationals, who happen to already be in the United States, may then apply for TPS. During the defined period, TPS allows those foreign nationals to live and work in the United States.
At least 60 days prior to a designation’s expiration, the Secretary of DHS must review country conditions and, through the DHS agency U.S. Citizenship and Immigration Services (USCIS), publish in the Federal Register a decision to either extend, re-designate, or terminate that TPS designation.
Uncertainty arises when the Secretary of DHS does not follow the statutory procedure codified in the Immigration and Nationality Act (INA). If the Secretary of DHS does not direct USCIS to publish a decision in the Federal Register before the 60-day window, then the INA lays out a backup mechanism: the expiring designation is automatically extended for six months.
However, the current administration has not consistently applied this auto-extension provision. Three different approaches illustrate the inconsistency. When TPS designation for Honduras expired on July 5, 2025, DHS had not published a determination notice before the 60-day window. Three days after the expiration date, USCIS published a notice in the Federal Register terminating the designation after 60 days even though the regulations automatically authorize a six-month auto-extension.
By contrast, DHS reacted differently when TPS designation for South Sudan expired on May 3, 2025. Similar to Honduras, DHS had not published a determination notice before the 60-day window. But three days after the expiration date, USCIS published a notice in the Federal Register confirming the six-month auto-extension.
Most recently, TPS designation for El Salvador expired on September 9, 2026, and DHS had not published a determination notice before the 60-day window. The same day of TPS expiration for El Salvador, USCIS published a notice—not in the Federal Register—but on its website. The notice merely stated that a formal announcement on the designation would be made at a later time and that Salvadorans with TPS retain protection and work authorization in the meantime.
With conflicting treatment about TPS auto-extensions, TPS holders from Ukraine face a particularly uncertain future. Having initially been designated a country for TPS in the wake of Russia’s invasion in early 2022, Ukraine has since received one redesignation for and two extensions of TPS. The latest extension of TPS for Ukrainians was issued by the Secretary of DHS in January of 2025 for 18 months. Although this current extension was set to expire on October 19, 2026, the Secretary of DHS did not publish a timely determination on whether to extend or terminate TPS designation for Ukraine. By operation of law, Ukrainians in TPS remain in TPS through April 19, 2027. But as the situations for Honduras, South Sudan, and El Salvador have revealed, the auto-extension for Ukrainians in TPS is not a done deal.
The effects of this legal uncertainty are both long-term and immediate. In the long run, a Ukrainian who was in TPS and applies for employment-based lawful permanent residency within the United States could face trouble in meeting the requirements. For instance, the applicant must demonstrate they have maintained lawful status since entry into the United States. That same applicant generally must show that all their employment in the United States was authorized under federal immigration law. But if there are conflicting interpretations from various authorities on whether the TPS auto-extension provision applies, then the applicant may struggle to adequately address these requirements.
More immediate consequences of the uncertainty surrounding TPS validity concern employment authorization. As a result of the unpredictability and sudden changes in TPS validity, a foreign national’s accompanying Employment Authorization Document (EAD) is likely to become expired before USCIS issues a renewed EAD. Even more problematic is when that same foreign national has an expiring driver’s license that is tied to their lawful status in the United States. Some states require applicants for a driver’s license to demonstrate their lawful status in the United States, with proper documentation including an unexpired EAD. To validate lawful status, state agencies rely on the USCIS-managed Systematic Alien Verification for Entitlements (SAVE) Program. However, the SAVE Program does not always timely synchronize a foreign national’s status, especially because of the abrupt policy decisions regarding TPS. Consequently, some TPS holders may be unable to drive—whether to work, to the grocery store, or to school—lest they risk violating traffic laws.
On the employer front, organizations that employ TPS holders are in uncharted waters with Form I-9 compliance. Under federal law, employers must verify the identity and employment authorization of new employees via Form I-9. Failure to comply with Form I-9 requirements exposes employers to civil monetary fines and, in egregious cases, criminal penalties. Due to the inconsistency of how DHS has treated TPS auto-extensions following the expiration of a TPS country designation, an employer faces the difficult decision to either keep its TPS employee on payroll and risk a Form I-9 violation, terminate the employee and potentially expose itself to lawsuits on a national origin discrimination basis, or place its TPS employee on unpaid leave pending more clarity from DHS. The third choice may still pose some risk because unpaid leave could be considered an employment action covered by national origin discrimination and it puts the organization at a disadvantage regarding daily workforce operations.
Employers must also reverify an employee’s Form I-9 documentation in anticipation of expiring temporary work authorization. The options for a foreign national in TPS to maintain uninterrupted employment authorization are very limited and demand careful planning. Pathways for a foreign national in TPS to at least remain lawfully in the United States may be more viable, depending on the manner of their entry into the United States. In either event, devising strategies are case-specific and can range from humanitarian relief like asylum and withholding of removal to family-based sponsorship, university enrollment, and in some cases, employer-sponsored work visas.
Ultimately, the inconsistent treatment of TPS auto-extensions leaves both foreign nationals and employers navigating a shifting legal landscape with real consequences for lawful status, work authorization, and business continuity. Until DHS provides clearer and more consistent guidance, affected TPS holders should closely monitor agency announcements and evaluate alternative immigration options, while employers should approach reverification and workforce planning with caution. For Ukrainians and other TPS populations facing similar uncertainty, proactive planning and identification of alternative immigration pathways may be the best available safeguard against disruption..
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the October 23, 2026 edition of The Legal Intelligencer© 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
