Filing for TPS: "Buyer Beware"

As the immigrant advocacy community nationwide gears up to help 100,000 to 200,000 Haitians in the United States to apply for Temporary Protected Status (TPS), a concern has arisen that unscrupulous individuals and organizations will crop up, as they often do in similar situations, to meet the unmet demand for help. It is very important, therefore, for Haitians to know who are the reputable attorneys and other legal advocates in their communities whom they should trust in this important filing process. Vulnerable immigrant communities, desperate for legal assistance in times like this, can fall prey to those who offer legal services but are wholly unqualified to give immigration-related information and representation—even just to complete and file forms. The consequences of inaccurate legal assistance can have a serious and lasting effect on one’s future immigration status.

While I cannot begin to list those entities which provide qualified and responsible legal assistance, I can set forth a few guidelines that may help a TPS applicant identify when there may be a problem, such that if that problem is not raised or addressed by the person assisting a Haitian to file for TPS, it may be a warning sign to seek help from someone else.

First and foremost, an eligible applicant has 180 days from January 21, 2010to file a TPS application. Only those Haitians who resided in the U.S. as of January 12, 2010are eligible. Those who arrive after that date are not eligible!

Secondly, not every Haitian is eligible for TPS even if she or he meets the qualifications listed below. A person convicted of a felony or two misdemeanor offenses is not eligible. Additionally, a person with criminal convictions who is not a U.S. citizen may be placed in deportation proceedings if s/he has a criminal conviction. If one has had police contact in the past, it is highly advisable to speak to a reputable and knowledgeable lawyer about this issue before submitting a TPS application.

These are the general requirements for and things to know about filing for Temporary Protected Status for Haitians:

1) TPS is temporary. TPS does not lead to permanent residency and anyone who promises a “green card” as the result of filing TPS should be viewed with caution. If a person is granted TPS, the status will be valid for 18 months. After such time, the U.S. Government must decide whether to extend the status. If so, a new application will be required.

2) TPS allows one to obtain employment authorization and a separate application for a work authorization is required when filing for TPS is required unless you are under 14 or over age 65. The application for TPS is an I-821. The application for a work permit is an I-765. These applications, as well as all of the very good information the U.S. Government has produced about TPS, may be found at the website of U.S. Citizenship and Immigration Services (CIS) at www.uscis.gov. CIS will also be launching a blog exclusively addressing TPS for Haitians.

3) An employment authorization document is generally valid for a specified, limited period of time. After such time, it must be renewed using the I-765 application.

4) There are fees to file for TPS, although fee waivers are available as stated below. The fees are: $50 for the I-821; $80 for biometrics (biometrics are photos and fingerprints taken at a CIS office, but they are only required for those over age 14); and $340 for the I-765. However, you are not required to file for a work permit if you do not want or need one and you are under 14 or over age 65. Two color passport style photos are also required.

5) Fee waivers are available for those unable to pay the fees and can prove financial need. The CIS website offers guidelines about obtaining a fee waiver.

6) You must be a Haitian national or a person without a nationality who last habitually lived in Haiti to qualify for TPS. You will be required to prove your citizenship with a copy of a passport (even if it is expired) or a copy of your birth certificate or your Haitian national ID card. If you do not have these documents, the Government may accept other forms of proof of nationality, but this depends on the document. This matter may be complicated and USCIS has guidance on what documents may be provided available at www.uscis.gov. Also note that, according to the Haitian Consulate in Miami, any child born outside of Haiti to a Haitian mother or father is a Haitian national.

7) You must have continuously resided in the United States as of January 12, 2010 (the date of the earthquake in Port-au-Prince). If you first arrived in the U.S. after that date, you are not eligible for TPS. You will have to prove your residence and continuous presence in the United States with rent receipts, payroll stubs, bank statements, school records, etc.

8) When you are granted TPS, you may be able to obtain a document, called "advance parole," which allows you to leave the U.S. However, before leaving the United States for any reason, you should consult a reputable attorney. The law says that anyone who has lived in the U.S. illegally for six months or more at any time may be barred from returning to the country, even if s/he has special permission to travel, like advance parole, through TPS. Be careful about leaving the country when you have lived in the U.S. out-of-status. The law on this issue is complicated and you should seek a legal consultation before applying for this permission.

9) The TPS application contains many questions which require an applicant to check "yes" or "no." Anyone who answers one of these questions, "yes," should seek a consultation from a reputable lawyer since a "yes" response may raise issues about eligibility for TPS or even one's right to be in the United States.

10) After you file for TPS, you will be sent an appointment notice for your biometrics (See #4 above). Do not miss this appointment. It may be a good idea to bring a translator to this appointment if you do not speak English. Some locations of CIS in the U.S. will have Creole interpreters, but not all. Bring valid photo I.D. to this appointment if possible.

11) You may still apply for other immigration benefits for which you qualify even if you file TPS.