Court Orders Postponement of the Termination of 2023 Venezuela TPS Designation and Employment Authorization Extensions

On March 31, 2025, a California federal court in National TPS Alliance v. Noem granted the plaintiffs’ motion to postpone the actions taken by Department of Homeland Security (DHS) Secretary Kristi Noem regarding the 2023 Venezuela Temporary Protected Status (TPS) Designation. Specifically, the order postponed Secretary Noem’s decisions to vacate the TPS extension previously implemented under former Secretary Alejandro Mayorkas and to terminate the 2023 TPS Designation for Venezuela. The judge’s postponement order applies nationwide. 

Background 

Venezuela was initially designated for TPS on March 9, 2021, on the basis of “extraordinary and temporary conditions in Venezuela that prevented nationals of Venezuela from returning in safety.” See 86 FR 13574 (Mar. 9, 2021) (the “2021 designation”). On October 3, 2023, the TPS designation was extended for 18 months and the country, separately, was redesignated for TPS for another 18 months based upon the same factual circumstances and legal considerations (the “2023 designation”). 

On January 17, 2025, former DHS Secretary Alejandro Mayorkas extended TPS for Venezuela for 18 months, beginning on April 3, 2025, and ending on October 2, 2026. This included automatic work authorization extension for such individuals through April 2, 2026, with the ability to receive new employment authorization document (EAD) cards with an expiration of October 2, 2026.

On January 28, 2025, three days after Secretary Noem took office, the Department reversed the actions taken by the previous Biden administration to extend temporary protection of Venezuelan nationals that have been in place since 2021, and vacated the extensions given by Secretary Mayorkas. The vacatur meant that TPS for Venezuela would revert to its prior expiration dates of April 2, 2025 (for the 2023 designation) and September 10, 2025 (for the 2021 designation).

This action was immediately challenged by affected individuals in lawsuits around the nation, including this current action by the National TPS Alliance.

Court Decision 

In the instant case, the plaintiffs filed a motion requesting the judge postpone “the effective date” of Secretary Noem’s vacatur issued on of February 3, 2025, which vacated the extension of TPS for Venezuela and TPS designation for Venezuela. 

The motion specifically mentioned the expiration of employment authorization for TPS Venezuelan holders as a basis for requesting postponement, “[a]bsent postponement of the effective date, the challenged orders will go into effect on April 3, 2025, when employment authorization documents for nearly 350,000 Venezuelan TPS holders who initially registered for TPS under Venezuela’s 2023 designation will expire.”

The district court granted this motion, postponing the actions taken by Secretary Noem, specifically, “her decisions to vacate the extension of the 2023 Designation and to terminate the 2023 Designation,” pending final adjudication of the merits of this case.

Impact of the Order

As a result of the court’s decision, the prior order implemented by former Secretary Mayorkas remains in effect, and the recent order published under Secretary Noem is postponed. Accordingly, the 2023 TPS Venezuela designation and its extension through October 2, 2026, remain in place, nationwide, while the lawsuit is ongoing. Venezuelan nationals under the 2023 designation, once again, automatically receive an extension of their current EADs through April 2, 2026. And TPS remains valid for current beneficiaries of the 2021 Venezuela TPS designation through September 10, 2025.

It should be noted that the order from the judge is likely to be appealed by the government and is not a final decision on the case. Littler will be monitoring the progress of this case, as well as other similar lawsuits, to note any changes to employment authorizations for TPS Venezuelan beneficiaries and their underlying status in the United States. 

At present, employers should follow the previous notice published under Secretary Mayorkas. Specifically:

• Venezuelan nationals under the 2023 TPS Designation with TPS-based EADs with the notation “A12” or “C19” under Category and a “Card Expires” date of September 10, 2025, April 2, 2025, March 10, 2024, or September 9, 2022, are automatically extended through April 2, 2026, without any further action on the individual’s part.
• Individuals may also be eligible for a longer automatic extension of up to 540 days from their “Card Expires” date on the EAD if they file their Form I-765 EAD renewal application during the re-registration period of January 17, 2025, through September 10, 2025. But under no circumstance will an individual’s EAD automatic extension be valid past October 2, 2026.
• Venezuelan nationals under the 2021 TPS Designation remain valid under TPS until Sept. 10, 2025.
• Employers re-verifying the I-9s for employees affected by the previous April 2, 2025 expiration should follow the above listing an expiration date of April 2, 2026 in Supplement B (formerly Section 3) on Form I-9 for individuals with qualifying EADs. And note in the “Additional Information” section, “Extension based on nationwide injunction issued by U.S. District Court, Northern District of California.”

NOTE: It is unclear whether TPS registration will be reopened by DHS pursuant to the court’s order. The government is expected to appeal the order by this weekend. As such, employers should not advise individual employees regarding their ability to apply for redesignation of TPS or their ability to extend their work authorization past April 2, 2026. Employees should be advised to speak with their own personal immigration counsel regarding their underlying status and further extension of any related benefits.

Employers with questions regarding this recent decision and/or completing their Form I-9 records for affected employees should consult with immigration counsel for guidance.