DHS Partially Vacates Haiti’s TPS Extension, Reducing Duration by Six Months

The Department of Homeland Security (DHS) announced on February 20 that Secretary Noem decided to partially vacate former Secretary Mayorkas’s Temporary Protected Status (TPS) designation and extension for Haiti by reducing the duration of the country’s designation (and corresponding registration period) by six months. Secretary’s Noem’s reasoning relied heavily on Mayorkas’s failure to consider or analyze whether Haiti’s extended designation was consistent with the “national interest”, as is required by statute.

Specifically, the secretary has determined that the extension and designation period for Haiti should be reduced from the statutory maximum of 18 months to 12 months. Accordingly, the Haiti TPS extension and new designation will expire on August 3, 2025, instead of February 3, 2026. Haitian TPS beneficiaries will be able to maintain their protection from removal and work authorization documents in the interim.

Federal law only allows the secretary of Homeland Security to issue or extend a TPS designation if they determine that a 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 “finds that permitting such aliens to remain temporarily in the United States is contrary to the national interest of the United States”. (Emphasis added.)

Haiti has been designated for TPS since 2010, after the country suffered a devastating earthquake. The first Trump administration attempted to terminate the country’s designation in 2018, but that termination was effectively halted by litigation, and the country’s designation was continued during the Biden administration. The most recent designation and extension, in July 2024, was set to expire on February 3, 2026.

This designation was based on the “extraordinary and temporary conditions” standard, after Secretary Mayorkas determined that Haiti met this threshold because of “grave insecurity and gang crime, as well as socio-economic and humanitarian conditions, including those resulting from environmental disasters aggravating food insecurity”.  In Noem’s rescission notice, however, DHS explained that Mayorkas’ extension was granted without including “any support in the record” whether the extension was “consistent with the national interest”, as the TPS statute requires.

DHS added that each extension or redesignation of Haiti’s TPS designation has allowed more inadmissible arrivals, even those who arrived illegally, to obtain TPS. “In May 2011, DHS estimated that 57,000 Haitians were eligible to register for TPS. In August 2021, DHS estimated that 155,000 Haitians were eligible under that new designation. And by July 2024, the estimate had ballooned to 520,694 (199,445 under the extension, and 321,249 additional aliens under the new designation).” (Citations omitted.)

Secretary Noem also recently rescinded a TPS extension for one of two Venezuela designations, also approved by former Secretary Mayorkas. The country’s second designation is active through September 2025.

Noem’s reasoning for Venezuela also relied on her “national interest” analysis. I predict all forthcoming TPS decisions based on the “extraordinary and temporary” threshold will include an analysis of this previously neglected statutory element.

Moreover, while this action marks the first time a TPS designation has been retroactively shortened, it is not the first time an administration revisited and rescinded a prior administration’s TPS determination. In 2023, Secretary Mayorkas rescinded the Trump administration’s TPS revocations for El Salvador, Honduras, Nicaragua, and Nepal. As I discussed earlier, these TPS terminations were tied up by legal challenges. The Biden administration moved to end the lawsuits after taking office by agreeing to rescind the terminations. Here, Mayorkas also claimed that the Trump administration “insufficiently considered” conditions relevant to the designations.