DHS Ends TPS for First Group of Venezuelan Beneficiaries

The Department of Homeland Security (DHS) announced yesterday that it will end Venezuela’s Temporary Protected Status (TPS) designation that is set to expire in April. Another designation for Venezuela will be still active until September 10, but likely also will be terminated in the coming months. Last week, DHS rescinded former Secretary Mayorka’s last-minute extension of Venezuela’s designation, but did not formally end Venezuelan nationals’ existing TPS benefits.

This decision will eliminate TPS benefits, which are principally protection from deportation and work authorization eligibility, for almost 350,000 Venezuelan nationals living in the United States. Venezuelans who are covered by the later designation, approximately 250,000 additional individuals, will be subject to the same outcome when their designation period expires. While any Venezuelan national in the United States can apply for TPS, the program only benefits aliens who have no immigration status (either because they entered illegally or overstayed their visa and/or parole) or whose immigration statuses are soon to expire.

Section 244 of the Immigration and Nationality Act (INA) only allows the secretary of Homeland Security to designate a country for TPS if they determine that the country is experiencing (1) an ongoing armed conflict within the country such that requiring the return of nationals to that country would pose a serious threat to their personal safety; (2) a natural or environmental disaster resulting in a substantial, but temporary, disruption of living conditions such that the foreign state is temporarily unable to adequately handle the return of their nationals; or (3) “extraordinary and temporary” conditions in the foreign state that prevent nationals of the state from returning safely (unless the secretary determines that permitting such aliens to remain temporarily in the United States is contrary to the national interest of the United States).

DHS reported in the Federal Register that Secretary Noem decided to end Venezuela’s designation because it no longer is consistent with the national interest. This language mirrors the TPS statute. Section 244 of the INA prohibits the secretary of DHS to designate or extend TPS based on “extraordinary and temporary conditions” if she “finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States”. Venezuela’s TPS designation is currently premised under the “extraordinary and temporary conditions” ground.

While disclaiming that “national interest” is an “expansive standard” that is subject to the secretary’s expertise and discretion, the DHS’s notice did explain some of the factors that Secretary Noem considered when evaluating whether a continuation of TPS for Venezuela was in the national interest and thereby authorized by statute.

The notice highlighted that the program has allowed a large number of aliens who are inadmissible to the United States or present in the country illegally to settle in the interior of the country, resulting in “difficulties in local communities where local resources have been inadequate to meet the demands caused by the increased numbers”, further noting that, “city shelters, police stations, and aid services are at maximum capacity”. DHS also reported on the increased presence of the Venezuelan gang Tren de Aragua in the United States, which “has been blamed for sex trafficking, drug smuggling, police shootings, kidnapping, and the exploitation of migrants”.

The notice also cited the “potential magnetic effect” for illegal immigration posed by a redesignation or anticipated extension. “The anticipated designation or extension for TPS and resulting benefit to access [work authorization documents] have been pull factors driving Venezuelan nationals to the United States. In October 2023, DHS stated that there were approximately 243,000 Venezuela TPS beneficiaries, while also estimating that approximately 472,000 additional aliens may be eligible under the October 3, 2023 designation.” Moreover, given the policy prerogatives that were articulated under President Trump’s January 20 executive orders, Secretary Noem reached the conclusion that extending Venezuela’s 2023 TPS designation “is in fact contrary to the national interest”.

Finally, DHS stipulated that while certain conditions in Venezuela that prompted the 2023 designation may persist, “there are notable improvements in certain areas such as the economy, public health, and crime that allow for these nationals to be safely returned to their home country.”

The 2021 Venezuela TPS designation remains in effect until September 10, 2025. Unless conditions that warrant a TPS designation under the “armed conflict” or “natural or environmental disaster” standards arise in Venezuela, CIS expects Secretary Noem to take the same action to end TPS benefits for the remaining Venezuelan beneficiaries at least 60 days prior.