Dual Nationality and TPS

The DHS may grant Temporary Protected Status (TPS) to nationals of certain countries who have experienced or are experiencing ongoing civil strife, environmental disaster, or other extraordinary and temporary conditions. In March 2021, President Biden designated Venezuela and Burma for TPS.

We often hear questions about dual nationality as some nationals of TPS-designated countries are also nationals of another country. For example, many Venezuelans hold passports from countries in Europe and South America by way of direct family relationships or refugee status.

Being a dual national by itself is not enough to bar one from applying for TPS. It would, however, invite close scrutiny, and in some cases, the officer may deny the application after reviewing the documentary evidence in its entirety.

The key issue for dual national applicants is whether or not they’re a national of the non-TPS designated country. If the finding is yes, then that means they may return to their non-TPS designated country and no longer need the “protection” inside the United States.

Operative Nationality

Although US law recognizes dual nationality, a person may claim only one nationality at a time for immigration matters within the United States. This singular “operative nationality” becomes the crucial first test in assessing whether the dual national may qualify for TPS. USCIS generally looks at how the applicant entered the US in order to determine operative nationality. For example, what passport they used to travel to the United States, and when applying for extension or change of status, how did they identify their nationality on forms and applications? If you entered with a passport from a TPS-designated country and that country is shown on the I-94, it’s safe to say you have met the operative nationality test.

Firm Resettlement

Even if the dual national passes the operative nationality test, the reviewing officer may still challenge by issuing a request for additional evidence (RFE) and assess whether the dual national may have firmly resettled in another country. The regulations state that a noncitizen is “considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country, received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement”. Under the firm resettlement analysis, simply having a passport from the non-TPS country without entry into the non-TPS-country should not give rise to a firm resettlement finding.

Even if the dual national did enter the non-TPS-country, the applicant may still establish that they are not subject to the firm settlement bar by showing that there were no significant ties or there were restrictive conditions in the non-TPS-country. USCIS further shed light on these factors in a March 29, 2021 Questions and Answers on “Designation of Syria for Temporary Protected Status,” by stating the following:

TPS applicants may submit evidence regarding when and how they obtained their non-TPS citizenship, the nature of their family and other ties to the non-TPS country, whether they have lived in the other country, when and how long they lived in that country, dates of visits to the non-TPS country of citizenship, and any other information that the applicant believes may be relevant to the firm resettlement issue.

Restrictive conditions in the non-TPS-country may also be shown by their lack of privileges and well-documented ill-treatment. For example, South American countries that have absorbed a large number of Venezuelan nationals in recent years have reported cases of violence and mistreatment against Venezuelans in their local communities. These restrictive conditions therefore may be sufficient to counter any findings of firm resettlement.

In summary, being a dual national does not prohibit an applicant from applying for TPS. Dual nationals applicants should carefully consider the aforementioned operative nationality and firm resettlement analyses before moving forward.

Related TPS posts:

  1. Can TPS Recipients Apply for Adjustment of Status?
  2. Breaking: Designation of Venezuela for TPS
  3. Breaking: Designation of Burma for TPS
  4. Re-Designation of Syria for TPS