By Brian Figeroux, Esq. | Photo Copyright IQ INC.
The recent developments surrounding Temporary Protected Status (TPS) for Venezuelans have plunged hundreds of thousands into a state of heightened uncertainty. While a federal court ruling on March 31, 2025, temporarily halted the termination of the 2023 TPS designation and its January 2025 extension, and the 2021 TPS designation remains in effect until September 10, 2025, the underlying fragility of this temporary status remains a stark reality. The Supreme Court’s summary order on May 19, 2025, allowing the Trump administration to strip protections for approximately 350,000 Venezuelans from the 2023 designation, further underscores the urgent need for beneficiaries to explore alternative pathways to legal status in the U.S. This article will analyze the potential avenues for legalization, distinguishing between those who entered with inspection and those who entered without, and emphasizing the critical role of legal counsel in this complex landscape.
The Precarious Nature of TPS and the Immediate Aftermath
TPS, by its very definition, is a temporary humanitarian relief. It provides protection from deportation and work authorization but does not, in itself, lead to lawful permanent resident (LPR) status or any other immigration status. When TPS ends, beneficiaries revert to their prior immigration status, if any, or become undocumented. For many Venezuelans, who fled severe humanitarian and economic crises, returning to their home country is not a viable option. The U.S. State Department’s continued advisory against travel to Venezuela, citing high risks of wrongful detention, torture, and civil unrest, contradicts the administration’s stated rationale for termination, highlighting the humanitarian imperative that often underlies TPS designations.
The recent legal back-and-forth has created significant confusion. While the 2021 TPS designation for Venezuelans is currently set to expire on September 10, 2025, the 2023 designation, which was extended until October 2, 2026, is now subject to the Supreme Court’s decision. This means that a significant portion of Venezuelan TPS holders face immediate risk of losing their legal status and work permits. This dynamic and volatile environment necessitates immediate and informed action for all Venezuelan TPS beneficiaries.
Pathways for Those Who Entered with Inspection (EWI)
Entry with inspection (EWI) means that an individual was lawfully admitted to the U.S. by an immigration officer, even if they overstayed their visa or violated its terms. This distinction is crucial in U.S. immigration law, as it opens up certain avenues for adjustment of status that are generally unavailable to those who entered without inspection.
- Adjustment of Status Based on Family Petitions:
For Venezuelans who entered with inspection, having a qualifying U.S. citizen or lawful permanent resident family member can be a direct path to a green card.
- Immediate Relatives of U.S. Citizens: Spouses, unmarried children under 21, and parents of U.S. citizens generally have an immediate path to adjustment of status, provided they meet other eligibility criteria. The “with inspection” entry allows them to adjust status without needing to leave the U.S. to attend a consular interview abroad, which often triggers the “unlawful presence” bar.
- Family Preference Categories: Other family relationships (e.g., married children of U.S. citizens, siblings of U.S. citizens, or certain family members of LPRs) fall under preference categories with visa bulletin wait times. While the wait can be long, EWI provides a significant advantage as it allows the individual to remain in the U.S. and adjust status when their priority date becomes current.
- Employment-Based Visas (with a few caveats):
While less common for those whose primary mode of entry was through humanitarian channels, Venezuelans with specific skills or qualifications could potentially explore employment-based immigration. This path typically requires a U.S. employer to sponsor them for a visa. EWI might facilitate certain employment-based adjustments if they otherwise meet the stringent requirements, though issues of maintaining lawful nonimmigrant status prior to TPS can complicate matters.
- Asylum:
Many Venezuelans who sought TPS did so due to credible fears of persecution in their home country. While TPS offers a temporary reprieve, asylum offers a pathway to permanent residency. Those who entered with inspection can generally apply for asylum affirmatively with USCIS or defensively in immigration court if placed in removal proceedings. A pending asylum application allows individuals to remain in the U.S. and obtain work authorization while their case is adjudicated, a process that can take many years. It is critical for applicants to demonstrate a well-founded fear of persecution based on one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.
- Special Immigrant Juvenile Status (SIJS):
For Venezuelan children and young adults under 21 who have been abused, neglected, or abandoned by a parent and for whom it is not in their best interest to return to Venezuela, SIJS offers a potential path to a green card. The EWI status is often a beneficial factor in these cases, although the primary focus is on the child’s well-being and eligibility under state juvenile court findings.
Pathways for Those Who Entered Without Inspection (EWI)
Entry without inspection (EWI) means an individual entered the U.S. without being formally admitted by an immigration officer. This typically involves crossing the border without authorization. EWI significantly limits adjustment of status options and often triggers bars to admissibility, such as the unlawful presence bar, which can require an individual to leave the U.S. and then re-enter, potentially facing a 3- or 10-year bar from re-entry.
- Asylum (Most Viable Humanitarian Option):
For Venezuelans who entered without inspection, asylum remains a primary and often the most viable path to long-term relief. Even without inspection, individuals can still apply for asylum if they can demonstrate a credible fear of persecution upon return to Venezuela. This typically involves expressing fear to a border official, leading to a credible fear interview, and then presenting their case before an immigration judge. A successful asylum grant can lead to LPR status after one year.
- Withholding of Removal/Convention Against Torture (CAT):
If an individual cannot meet the higher burden of proof for asylum, they may still be eligible for Withholding of Removal or protection under the Convention Against Torture (CAT). These forms of relief do not lead to a green card but prevent deportation to Venezuela if the individual can prove they would more likely than not be persecuted or tortured there. Unlike asylum, these protections do not require EWI individuals to overcome the unlawful presence bar.
- Provisional Unlawful Presence Waivers (I-601A):
In some specific circumstances, individuals who entered without inspection but are otherwise eligible for a family-based green card through a U.S. citizen or LPR spouse or parent may apply for a provisional unlawful presence waiver (Form I-601A). This waiver allows them to get approval for the waiver before leaving the U.S. for their consular interview abroad, mitigating the risk of the re-entry bar. However, this is a complex process with strict eligibility requirements and is not available for all EWI individuals.
- Special Immigrant Juvenile Status (SIJS):
Similar to those who entered with inspection, EWI children and young adults who meet the criteria for SIJS may also be able to adjust their status to LPR. The EWI status is generally waived for SIJS applicants.
The Crucial Role of Legal Counsel
Regardless of the mode of entry, the complexities of U.S. immigration law necessitate the immediate consultation with an experienced immigration attorney. The recent shifts in Venezuelan TPS policy demonstrate the fluid nature of immigration regulations. An attorney can:
- Assess Individual Eligibility: Each case is unique. An attorney can thoroughly review an individual’s immigration history, family ties, and circumstances to identify all potential avenues for relief.
- Navigate Complex Procedures: Immigration processes are fraught with intricate forms, deadlines, and evidentiary requirements. A lawyer can ensure proper filing and avoid critical errors.
- Address Inadmissibility Issues: EWI often triggers various grounds of inadmissibility. An attorney can determine if waivers are available and help prepare compelling waiver applications.
- Represent in Court: For those in removal proceedings, an attorney is indispensable in presenting a strong defense and advocating for relief before an immigration judge.
- Stay Updated on Policy Changes: Immigration law is constantly evolving, with judicial rulings and administrative policy shifts. An attorney stays abreast of these changes, providing the most current and accurate advice.
Conclusion
The expiration of TPS protections, even if temporarily stayed by court order, creates a critical juncture for Venezuelan nationals in the United States. While the path to legalization is significantly influenced by whether an individual entered with inspection or without, options do exist. Asylum remains a vital humanitarian pathway for many, regardless of entry method, and family-based petitions offer hope for those with qualifying U.S. relatives who entered with inspection. However, the intricacies of these processes and the ever-changing immigration landscape demand immediate and expert legal guidance. For Venezuelans whose temporary protection is ending, proactive engagement with immigration counsel is not merely advisable – it is essential for securing a stable and permanent future in the United States.