TPS for Venezuela and How to Interpret Threatening Letters to Employers

Many HR and mobility professionals currently employ Venezuelan nationals in the U.S. under Temporary Protected Status (TPS) designation. As of 2025, two distinct TPS designations exist for Venezuelan nationals – one issued in 2021 and the other in 2023.

This dual designation has led to confusion, particularly as employers receive increasingly aggressive communications from employees or their personal counsel. These letters often allege that failure to hire or affirmatively terminate Venezuelan TPS holders “may expose employers to civil liability under federal law,” often citing anti-discrimination claims. While the tone of these messages may be alarming, the legal claims they assert often misrepresent the actual statutory and regulatory framework.

Frank Fogelbach, managing attorney, offers this analysis to provide context and deeper insights and clarification around the current state of TPS for Venezuelan nationals. This analysis aims to clarify the underlying legal framework and highlight key differences between actual statutory provisions and the claims made in recent business immigration communications.

Notably, TPS status and employment authorization are distinct benefits governed by separate rules and timelines; work authorization must be evaluated independently of TPS status, regardless of any TPS extension.

The contents of this article are opinions provided for informative purposes only and are not meant as either legal advice or to establish an apparent or actual attorney-client relationship.

DHS Updates TPS Designations

When the Department of Homeland Security (DHS) intends to revoke TPS for any designated country, it must publish a termination notice in the Federal Register at least 60 days before the program’s expiration (per 8 U.S.C. §1254a). If DHS fails to do so, the statute provides for an automatic six-month extension of the TPS designation.

This provision is especially relevant in the case of Venezuela, which currently has two TPS designations:

2023 Designation: Revoked and Litigated

On February 3, 2025, DHS formally rescinded the 2023 TPS designation for Venezuela. This designation would have extended TPS status and employment authorization for eligible Venezuelan nationals through September or October 2026. DHS then scheduled the termination to take effect on April 7, 2025.

However, on March 31, 2025, a federal district court temporarily paused the termination, citing procedural and constitutional concerns under the Administrative Procedure Act and the Equal Protection Clause. The Supreme Court quickly ended the pause on May 19, 2025, by granting an emergency stay that allowed DHS to resume termination actions while litigation continues.

DHS currently treats the 2023 designation as revoked. That said, a narrow group of Venezuelan nationals who received TPS documentation (such as Form I-94 or Employment Authorization Documents) on or before February 5, 2025, may retain protections while the case remains pending. Employers should proceed cautiously when reviewing documentation tied to the 2023 designation, as eligibility and validity may vary depending on timing and individual circumstances.

2021 Designation: Still Valid, Likely Extended

Meanwhile, the 2021 TPS designation for Venezuela remains intact and is currently set to expire on September 10, 2025. Under 8 U.S.C. §1254a, DHS was required to publish a termination notice in the Federal Register at least 60 days prior to that expiration—meaning no later than July 12, 2025. Since DHS did not issue such notice, and barring litigation or a formal announcement from USCIS, the automatic six-month extension provision is likely triggered. That means TPS status for Venezuelan nationals under the 2021 designation is expected to remain valid through March 9, 2026.

Employment Authorization: Not Automatically Extended

Critically important: an automatic extension of TPS by itself does not automatically extend employment authorization. Past DHS practice teaches us that work authorization is only extended if one of two things happens:

DHS announces that TPS-based Employment Authorization Documents (EADs) with certain expiration dates are automatically extended until a later date, or
DHS allows individuals who benefit from the automatic TPS extension to apply for new EADs by filing Form I-765.

As of this writing, neither condition has been met for the 2021 Venezuela designation. DHS has not issued an automatic EAD extension, nor has it opened a new EAD filing window tied to the automatic TPS extension.

Therefore, the most logical conclusion, based on statutory interpretation and agency precedent, is that TPS for Venezuela (2021) is probably auto-extended by six months to March 9, 2026, but employment authorization ends on September 10, 2025, unless DHS issues further guidance.

Employer Threats and TPS: What the Law Actually Says

Notwithstanding statute and regulation, letters and emails are circulating in the business immigration community that threaten employers who do not hire or terminate Venezuelan TPS holders. Below, we address the statutory and regulatory provisions cited in these communications and clarify what the law actually provides.

8 U.S.C. §1254a

Claim in letter/email: 8 U.S.C. §1254a provides that TPS is automatically extended by six months if notice of TPS termination was not announced in the Federal Register within 60 days of TPS expiration.
Attorney position: correct.

8 C.F.R. §244.17(a)

Claim in letter/email: This regulatory provision states that TPS remains in effect during extension periods.
Attorney position: This regulation states that folks granted TPS must re-register according to USCIS instructions and during the re-registration period provided by USCIS.

8 C.F.R. §274a.13(d)((1)(i)

Claim in letter/email: EADs benefit from an automatic 180-day extension.
Attorney position: Although the 180-day extension timeframe is mathematically correct, it applies to TPS-related EADs only if the EAD application is “Properly filed” during the re-registration period designated by USCIS. This provision is meant to extend the validity period of a TPS-based EAD by 180 days in situations where the TPS-based EAD application is filed during the re-registration period, but is not yet approved before the EAD expires.

8 U.S.C. §1324b

Claim in letter/email: This statutory provision prohibits discrimination based on immigration status, national origin or citizenship status.
Attorney position: The broad anti-discrimination provision is correct, although it is limited by the exception provided at 8 U.S.C. §1324a(h)(3), which permits an employer to refuse to hire or continue to employ aliens who are not authorized for employment by the Attorney General.

Key Takeaways:

The 2023 TPS designation for Venezuela was legally revoked.
The 2021 TPS designation for Venezuela is valid until September 10, 2025, which is likely automatically extended until March 9, 2026, barring court or agency intervention.
Work authorization for Venezuelan TPS beneficiaries subject to the 2021 designation ends on September 10, 2025.
Letters and emails circulating on the internet are legally incorrect.

Ultimately, TPS status and employment authorization are distinct benefits that have separate rules and timelines. Work authorization must be evaluated independently of TPS status, regardless of any TPS extension.

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About the author: Frank J Fogelbach earned a Bachelor’s degree in Economics with a concentration in Econometrics from Loyola Marymount University in Los Angeles, California. He worked at the international think tank, The Milken Institute, as an Analyst in the Regional Economics Division before attending law school. Frank graduated from Tulane University Law School in 2008 and has been practicing immigration law for the past 13 years. He is currently a Managing Attorney and is licensed to practice law in New York and California.