09/09/2026
Practice Alert: DHS Fails to Make an Official Determination on TPS for El Salvador
9/9/26 AILA Doc. No. 26090902. Employer Compliance, Temporary Protected Status & Deferred Enforced Departure
Temporary Protected Status for El Salvador was set to expire on September 9, 2026. However, as of 4:00 pm ET September 9, DHS has not issued an official decision on the status of TPS El Salvador. Rather, it was shared through media that the DHS spokesperson has said “[a]n announcement on El Salvador’s TPS will be made at the appropriate time. Until such announcement is made, Salvadoran individuals present in the U.S. under TPS retain protection.”
The lack of an official DHS determination has caused confusion for both individuals from El Salvador who hold TPS status and the attorneys advising them. Per INA 244a(b)(3)(B), to terminate TPS, DHS must provide 60 days’ notice of termination in the Federal Register. Moreover, INA 244a(b)(3)(C) states that if the Secretary of Homeland Security does not determine that a country no longer meets the conditions for TPS designation, then the period of designation may be extended for an additional period of 6, 12 or 18 months per the discretion of the Secretary.
It is important to note that in the recent past, where DHS failed to timely provide notice of the terminations of TPS designations, the results have been different. In some instances, DHS published its decision to terminate three days after the expiration date and the termination was made effective 60 days later. In another instance, the delayed announcement was followed by a notice of a 6-month extension.
For example, TPS Honduras was set to expire on July 5, 2025, but DHS did not announce the termination until July 7 and published it in the Federal Register on July 8 with a September 8, 2025 effective date. By contrast, on May 6, 2025, DHS published a notice in the Federal Register specifically stating that because the Secretary was unable to make an informed determination on South Sudan’s TPS designation by the 60-day statutory deadline, the TPS designation for the South Sudan was automatically extended for six months. This conclusion was also replicated on USCIS’ TPS page for South Sudan. Under this reasoning, if DHS intends to extend El Salvador TPS, it would likely say so.
Many questions remain unanswered, including what “protected for now" means and how employers should document I-9 forms. Until DHS makes a formal announcement regarding the status of TPS for El Salvador, members should caution against reliance on informal announcements to prove employment authorization and status. As stated in a prior Practice Pointer (AILA Doc No. 25080507), the continuation of employment based on the auto-extension argument alone is a higher risk for two reasons: (1) USCIS has not extended these EADs, meaning individuals affected cannot demonstrate they are authorized to work pursuant to Form I-9 restrictions; and (2) a “silent extension” is contrary to historical and recent USCIS practice. Members may want to provide clients with information about these risks so that clients can assess their specific situation and make an informed decision about the continuation of employment prior to official guidance from DHS.
