This alert was originally published to the BIG Immigration Blog linked here.
In a pivotal immigration development, the U.S. Supreme Court (SCOTUS) has effectively granted the Department of Homeland Security (DHS) permission to proceed with the termination of the 2023 Temporary Protected Status (TPS) designation for Venezuela. This decision reverses, at least for now, a lower court’s order that had temporarily blocked the termination, originally scheduled for April 7, 2025.
The $64,000 Question: Do Individuals Covered Under the 2023 Venezuela TPS Still Have Work Authorization?
At this moment, the answer remains unclear. Employers and TPS beneficiaries are in a holding pattern, awaiting formal guidance from DHS on the status of work authorization tied to the 2023 TPS designation. As of today May 27, U.S. Citizenship and Immigration Services (USCIS) has only issued a general statement—posted late on May 21—indicating that further information is forthcoming. No timeline for that guidance has been provided.
We will continue monitoring updates closely and will provide further information as soon as DHS clarifies the implications for employment authorization.
Background
On January 17, 2025, then-DHS Secretary Alejandro Mayorkas extended TPS for Venezuela through October 2, 2026, covering both the 2021 and 2023 designations. However, on January 28, newly appointed DHS Secretary Kristi Noem vacated that extension. As a result:
- The 2023 designation was set to expire on April 2, 2025 (for work authorization) and April 7, 2025 (for TPS benefits).
- The 2021 designation remained valid through September 10, 2025.
Legal challenges quickly followed, and a federal district judge blocked the government from implementing the April 2025 termination dates. On May 19, 2025, the Supreme Court stayed the district judge’s blocking order in a short, 8-1 decision, effectively allowing DHS to move forward with the termination of the 2023 designation.
TPS Designation Breakdown
2023 Venezuela TPS Designation
1. SCOTUS Decision: The Supreme Court stayed the District Court’s order that had blocked DHS’ termination of the 2023 designation, pending the outcome of an appeal from the District Court’s order to the Ninth Circuit Court of Appeals. The Supreme Court did not rule on the merits of the District Court’s, but simply directed that the District Court’s order should be stayed at least until the Ninth Circuit decides, on the merits, whether the District Court’s order was proper.
2. Termination Timeline: The original termination date was April 7, 2025, with work authorization expiring April 2, 2025. DHS is expected to issue updated guidance on how it will implement the termination and whether it will be immediate or will provide any grace period.
3. Legal Uncertainty: The District Court had blocked DHS’s termination pending ruling on the merits following discovery. The District Court is slated to hold a hearing on May 29, 2025, which should reveal the next steps in the case, perhaps including a discovery schedule. Separately, new individual lawsuits may also be filed.
4. Ninth Circuit Proceedings: While the case progresses in the District Court, the Ninth Circuit is hearing an appeal on the merits of the District Court’s order blocking the termination. The Ninth Circuit is scheduled to hear oral argument on July 16 and could issue a decision later in the summer or fall. If the Ninth Circuit affirms the District Court’s blocking order on the merits, then the Supreme Court stay will end unless DHS seeks Supreme Court review of that merits order. Although the Supreme Court frequently denies petitions for a writ of certiorari seeking review, the fact that the Supreme Court voted 8-1 to stay the District Court’s ruling may indicate that the justices are interested in addressing the merits of this case.
2021 Venezuela TPS Designation
1. Still Valid: TPS under the 2021 designation remains in effect through September 10, 2025.
2. Not Affected by SCOTUS: The Supreme Court’s decision does not impact the 2021 designation.
3. Next Steps: DHS is expected to decide by July 2025 whether to extend or terminate the 2021 designation. A 60-day notice is required for any termination.
4. Automatic Extension: If no decision is made by July, a six-month automatic extension will apply, although this outcome is not anticipated.
What Should Employers and TPS Beneficiaries Do?
Employers should prepare to reverify employment authorization for individuals under the 2023 TPS designation as soon as the USCIS issues guidance.
We expect that the USCIS will confirm that the specific 2021 Employment Authorization Documents that will remain valid, including the those with EADs showing category code A12 or C19 for Venezuela including a card expiring on March 10, 2024 or September 9, 2022. Accordingly, employers should not take actions against this population.
TPS beneficiaries are strongly encouraged to consult with immigration counsel to understand their options and ensure compliance with evolving DHS guidance.
What’s Next?
USCIS is expected to release detailed guidance on how the termination will be implemented. In the meantime, stakeholders should remain proactive and informed.
In this rapidly evolving landscape, employers should continue to monitor developments closely, consult legal counsel as needed, and maintain flexibility in responding to changing guidance. Seyfarth will continue to monitor this litigation and provide updates as information becomes available.
For more information, contact your Seyfarth relationship attorney or the authors Dawn Lurie, Owen Wolfe and Alex Madrak directly. The Seyfarth Immigration Compliance & Enforcement specialty group offers advice and counsel relating to Form I-9 or E-Verify compliance, ICE inspections and worksite enforcement actions, internal immigration assessments, I-9 audits, DOL immigration-related wage and hour investigations, general H-1B compliance, and DOJ-IER anti-discrimination matters including foreign sponsorship and export control/ITAR issues. The Seyfarth Appellate Group has substantial experience handling appeals in nearly every area of U.S. law. Seyfarth’s appellate attorneys have the unique combination of analytical, writing, and oral advocacy skills to deliver winning briefs and compelling oral arguments. The Seyfarth team has handled hundreds of appeals in both state and federal courts nationwide. In addition to representing parties in appeals, Seyfarth frequently represents non-parties in drafting and submitting amicus curiae briefs in high-profile cases with policy implications or other broad significance.
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