TPS Venezuela: A Legal Whiplash With Real-World Consequences

In a move that underscores the volatility of immigration policy under judicial review, the U.S. Supreme Court has once again intervened in the ongoing litigation surrounding the 2023 Temporary Protected Status (TPS) designation for Venezuela. On October 3, 2025, based on an emergency filing, the Court granted the Department of Homeland Security's (DHS) request to stay a lower court ruling that had reinstated the 2023 TPS designation through October 2, 2026. This decision effectively re-terminates the designation as of early April 2025, allowing DHS to resume enforcement actions against affected individuals, even as litigation continues.

Let's unpack what this means for the roughly 350,000 Venezuelan nationals and their employers who had been relying on TPS protections to live and work in the United States.

A Tale of Two DHS Secretaries and Two TPS Designations

The 2023 TPS designation was originally extended by then-DHS Secretary Alejandro Mayorkas in January 2025, granting Venezuelans an 18-month reprieve. But just days later, newly appointed Secretary Kristi Noem vacated that extension, citing changed conditions in Venezuela. Her decision set the expiration date for the 2023 designation on April 7, 2025, and the 2021 designation on September 10, 2025.

Litigation ensued and the district court sided with TPS plaintiffs, granting summary judgment, and finding that DHS's actions were unlawful under the Administrative Procedure Act. Notably, just before the Supreme Court intervened on Friday, the Ninth Circuit had issued a separate ruling on October 2, 2025, in which they declined to stay the district court's determination pending appeal.

That Ninth Circuit ruling on October 2 effectively blocked DHS from terminating the 2021 and 2023 TPS Venezuela designations. As a result, U.S. Citizenship and Immigration Services (USCIS) posted updated guidance on October 2, 2025, confirming a rollback of the 2023 TPS Venezuela termination and clarifying eligibility and registration periods for Venezuelan TPS holders. The update allowed some TPS recipients to temporarily regain work authorization and legal status under the 2023 TPS Venezuela designation.

However, on October 3, the U.S. Supreme Court granted the stay pending appeal that the Ninth Circuit had declined, throwing TPS holders back into uncertainty. With this stay, DHS is once again treating the 2023 designation as expired, and the protections briefly restored under the district court's and Ninth Circuit's orders have now been nullified.

The Supreme Court's stay now allows DHS to treat the 2023 designation as expired. Enforcement actions, including potential removal proceedings, may resume immediately and the work authorization for most of these 2023 TPS beneficiaries has ended.

Unpacking the 2021 TPS Venezuela Designation

Employment Authorization Documents (EADs) that expire Sept. 10, 2025; March 10, 2024; or Sept. 9, 2022, issued under the 2021 TPS designation of Venezuela are valid until November 7, 2025. DHS has confirmed that it will not extend the 2021 Venezuela TPS designation beyond the 60-day transition period through November 7, 2025.

2023 TPS Venezuela Designation is Dead

As a result of the Supreme Court's stay, USCIS is likely to treat EADs under the 2023 designation as having expired on April 2, 2025.

To add to the complexity, there's an important caveat: TPS Venezuela beneficiaries who received a TPS-related EAD on or before February 5, 2025 with a "Card Expires" date of October 2, 2026 will retain work authorization through that expiration date.

In its court papers before the Supreme Court, DHS asserted that it was not seeking review of the district court's order providing "relief to those Venezuelan TPS holders who received TPS-related documentation...up to and including February 5, 2025" (emphasis added). Seyfarth is seeking clarification from USCIS on whether this same protection applies to individuals who hold a valid I-797C Receipt Notice for a Form I-765 EAD renewal application, provided the "Received Date" is on or before February 5, 2025.

What Should Employers Do Now?

For employers, this situation calls for a careful review of Form I-9 documentation and a clear understanding of who in their workforce is covered under TPS for Venezuela. The next step is to review the card expiration dates for the TPS (A12 or C19) designations.

2021-associated EADs with September 10, 2025, March 10, 2024 or September 9, 2022 dates should be updated to reflect the EAD expiration date on the Form I-9 to November 7, 2025.

The 2023 group that may have been hired, rehired, or reinstated after the September 2025 district court decision must immediately be reverified. If an employee is unable to provide alternative valid work authorization documentation, the employer must initiate offboarding.

Complicating matters further, some expired EADs issued under the 2023 TPS designation may still appear valid, particularly when viewed alongside outdated USCIS guidance. This can lead to confusion during onboarding, with individuals mistakenly cleared to work. As a result, employers should continue to closely monitor these cases to ensure ongoing compliance.

Immigration and Customs Enforcement (ICE) is aggressively ramping up worksite enforcement efforts, including unannounced site visits, formal Notices of Inspection, and targeted audits. We strongly recommend that businesses take all steps necessary to avoid giving ICE a reason to knock at your door. Even well-intentioned employers are facing significant financial penalties and reputational risk for seemingly minor I-9 errors or process gaps.

With the current Supreme Court decision and the case pending at the Ninth Circuit, ICE may use this period of legal uncertainty to accelerate enforcement activity and expedite removals. Employers with high populations of Venezuelan or other terminated TPS-designated workers should be particularly alert.

A Note on USCIS Guidance

As of October 8, 2025, USCIS's website has not been fully updated to reflect the Supreme Court's latest ruling. Only the top "Alert" portion reflects the Supreme Court ruling. The expandable sections underneath have not been updated likely due to the government shut down. While some guidance has been issued in prior months, including clarifications on document validity for certain TPS holders, employers should work with legal counsel, proceed cautiously, and monitor for official updates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.