DHS Vacates Venezuela’s TPS Extension

The Department of Homeland Security, under new Secretary of Homeland Security Kristi Noem, announced this week that it has vacated former Secretary Alejandro Mayorkas’ January 10, 2025, Temporary Protected Status (TPS) extension for Venezuela. This is the first time an administration has affirmatively vacated an extension of TPS – rather than allow a country’s TPS designation to expire. Currently, approximately 600,000 Venezuelans in the United States benefit from TPS. 

Mayorkas extended the most recent (2023) designation of Venezuela for another 18 months (the longest period permitted by law) and allowed all eligible beneficiaries to obtain TPS and related-employment authorization documents through October 2026. As a result of Secretary Noem’s action, Venezuelans who currently hold TPS will have their status and associated EADs expire on April 2, 2025, the date that the previous TPS designation was set to expire – regardless of whether they received TPS under the 2021 designation for Venezuela or the 2023 redesignation. 

DHS cited legal deficiencies in Mayorkas’ January 10 extension as the rationale for the vacatur. In a Federal Register notice, DHS explained that former Secretary Mayorkas’ act of “implicitly negating the 2021 Venezuela TPS designation by effectively subsuming it within the 2023 Venezuela TPS designation” was not authorized by the statute. DHS explained that, “[w]hile [Mayorkas] did not make an explicit determination to extend the 2021 designation, he did allow consolidated filing processes for both the 2021 and 2023 designations, which in effect extended the 2021 designation by up to 13 months. Furthermore, he allowed extensions for certain EADs.” Accordingly, DHS is vacating the extension to “untangle the confusion, and provide an opportunity for informed determinations regarding the TPS designations and clear guidance.”

Because the 2023 designation was not withdrawn (only its extension), DHS must still decide whether it wants to extend the TPS protections that are set to expire on April 2. If DHS does not decide by February 5, TPS benefits will automatically renew for six months. Benefits issued under the 2021 designation, however, will expire in September 2025. To extend a TPS designation, section 244 of the INA requires the Secretary of Homeland Security may only designate a country for TPS if they determine that a country is experiencing:

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;

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

“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).

Venezuela was first designated for TPS by former Secretary Mayorkas in March 2021. Each designation has been made on the “extraordinary and temporary conditions” standard, based on the severe humanitarian emergency that has occurred under the Maduro regime. 

Venezuela was also covered by Deferred Enforced Departure (DED) during the Biden administration. DED provides similar benefits as TPS, but is not authorized by law. Instead, it is a construct that is derived from the president’s constitutional authority to conduct foreign relations. DED for Venezuela expired in 2022.