El Salvador’s Temporary Protected Status reaches a legal crossroads: as TPS for El Salvador reached its designated expiration date on September 9, DHS failed to publish the Federal Register notice required 60 days in advance, which triggers an automatic 6-month extension under INA § 244, leaving over 170,000 Salvadorans in legal limbo. The procedural stumble collides with the Supreme Court’s recent ruling that strips courts of most power to intervene—but whether that ruling applies to El Salvador’s case remains untested.
What changed
As TPS for El Salvador reached its expiration date on September 9, DHS was required by federal law to publish a formal notice 60 days in advance—a step that was never taken. Under statute, missing the 60-day window means the existing designation is supposed to roll over automatically for six months, regardless of employer-facing guidance.
The Mullin v. Doe Supreme Court decision stripped courts of most power to block TPS terminations, but the case decided only Haiti and Syria’s status, leaving El Salvador’s designation in a legally distinct position. In a 6-3 opinion issued June 25, the Court held that federal law largely bars judges from second-guessing TPS terminations, letting the administration proceed against Haitian and Syrian beneficiaries whose protections lower courts had paused.
The tension: USCIS and E-Verify guidance tells employers to treat September 9 as the end of El Salvador’s TPS, but DHS never published the Federal Register notice the law requires to make a termination official.
Why it matters
The missed notice creates a statutory paradox. Whether Secretary Markwayne Mullin’s department will actually apply the automatic-extension rule to El Salvador remains untested. If DHS proceeds with termination despite the procedural gap, TPS holders and their advocates will face an uphill fight: Mullin v. Doe has narrowed the grounds on which courts can review TPS decisions, but that ruling explicitly addressed only Haiti and Syria.
Practitioners must prepare clients for three parallel uncertainties:
-
Status limbo. DHS said a formal decision on El Salvador’s designation hasn’t been made and beneficiaries “retain protection,” but that leaves Salvadoran TPS holders dependent on the administration’s own initiative rather than a right they can enforce in court.
-
Work permits in doubt. DHS told multiple outlets that Salvadoran protections continue while a final call on TPS is pending, but that assurance does not cover the employment authorization cards that expired on September 9.
-
Court intervention limited. A Boston judge’s July stay of related work-permit cuts was narrowed in August, and the fight has moved to an appeals court that has not yet ruled.
Way forward
-
Monitor the Federal Register daily for any DHS notice formalizing El Salvador’s termination or extension. The absence of that notice is your strongest procedural argument.
-
Counsel clients on the statutory extension. Under INA § 244, if DHS misses the 60-day deadline and does not file a notice, the designation continues for six months on autopilot. Document the missed deadline in your file.
-
Prepare for dual filing strategies. Some clients may need to file I-765, I-131, or other emergency relief applications now; others may wait to see if DHS publishes a termination notice. Consult current BIA and circuit precedent on ripeness and exhaustion.
-
Stay alert to circuit court developments. The Ninth Circuit Court of Appeals handed the Trump administration a win by vacating a preliminary injunction that had preserved TPS for individuals from Sudan, Nicaragua, Haiti and El Salvador, finding the lower court judge acted outside authority when siding with plaintiffs who argued the decision violated the Administrative Procedure Act. Expect further appeals, and track the different legal theories being tested across circuits.
Disclaimer
This article is written by a software company, not a law firm, and does not constitute legal advice. All information is based on the source article linked above and is current only as of the publication date. Immigration policy can change without notice, and court rulings may be reversed or distinguished. Verify all facts against the primary sources and consult a licensed immigration attorney before advising any client.