Should I apply for TPS or Asylum?

Someone in the United States who is afraid to return to their country of citizenship might be eligible for Temporary Protected Status (“TPS”) or asylum in the United States, or sometimes both. However, there are important differences between the two programs.  

Temporary Protected Status (“TPS”) is a program by which only citizens of certain designated countries are allowed to remain in the United States. These countries are chosen depending on whether conditions there are unsafe for its citizens to return due to war or natural disasters.  Currently, there are 10 countries on the list, including: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. 

The permission to stay under TPS is “temporary,” as the name implies, and it does not provide any kind of permanent status, such as a greencard or US citizenship. Someone who has TPS can stay and work in the US potentially for many years while the program continues and can also receive permission to travel lawfully in and out of the United States. Many of our Nepalese clients have TPS, which was recently extended up to October 4, 2021. However, not just any citizen of these countries can apply. Each designated countries’ nationals have different rules regarding the dates on which they have to show they were present in the United States. For Nepal, for example, someone applying for TPS would have to show they were present in the US since June 24, 2015. Any Nepalese citizen coming to the US after that date would not qualify for TPS. 

Asylum is a different category of relief for people who are afraid to return to their country of origin. Unlike TPS, citizens of any country in the world can apply for asylum, and a grant of asylum leads to a greencard and US citizenship. Another difference between TPS and asylum is that while TPS is granted based on general unsafe conditions in the applicant’s country when filing for asylum the applicant has to show that they are specifically targeted because of their race, religion, nationality, political opinion, or social group. Also, unlike TPS, there is usually a deadline to apply within one year from the applicant’s last entry to the United States, barring some exceptions.  

It can often be the case that someone might be eligible for TPS and asylum at the same time. For example, someone from Nepal might not be able to return there due to the unsafe conditions after the devastating earthquakes in 2015, and also because they are being targeted because of their political opinion. In that case, they can technically apply for TPS and asylum at the same time. However, if an affirmative asylum application is denied by the asylum office, an approved TPS application would likely lead to a final denial of the asylum application rather than a referral to the immigration court, where the immigration judge can review the asylum denial one more time. It is a case-by-case strategic decision to consider whether an asylum applicant should also apply for TPS benefits when they are eligible for both.  

If you have questions about your eligibility for either TPS or asylum, do not hesitate to call us at (415) 895-0661.  

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