A federal district court in Massachusetts has ruled, on a preliminary basis, that the U.S. government may enforce a one-year cap on Temporary Protected Status (TPS) work permits created by the One Big Beautiful Bill Act (OBBBA, formally H.R. 1), even as applied to work permits issued before the law took effect. But the same August 5, 2026 order blocked a separate USCIS policy that would have let the agency reject pending asylum applications and begin deportation proceedings against applicants who missed payment of a new Annual Asylum Fee.
The ruling in Venezuelan Association of Massachusetts v. USCIS resolved a request to pause agency action under the Administrative Procedure Act, not the final merits of the case. Membership organizations brought the challenge on behalf of people affected by the asylum fee and TPS work-permit policies. Later country-specific USCIS announcements now matter directly to workers: El Salvador TPS protection continues pending another announcement, while qualifying Sudan and Ukraine beneficiaries may have notice-based work-permit extensions through October 19, 2026.
What the Court Actually Decided
U.S. District Judge Nathaniel Gorton's August 5, 2026 memorandum addressed a motion to stay agency action under 5 U.S.C. §705, the standard that mirrors a preliminary injunction. The court found plaintiffs were not likely to succeed on their challenge to what the order calls 'the Cap Policy' — the one-year limit on TPS-based work authorization mandated by OBBBA. The court also rejected arguments that the Cap Policy was procedurally invalid for lack of notice-and-comment rulemaking, reasoning that the government had 'no choice but to effectuate the command of the statute.'
On the asylum side, the court reached the opposite conclusion. It found plaintiffs likely to succeed on their claim that provisions of an April 2026 interim final rule — allowing USCIS to reject pending asylum applications and initiate removal proceedings for failure to pay the Annual Asylum Fee within 30 days — were procedurally invalid because they affected applicants' 'substantive rights,' not mere agency procedure.
The One-Year EAD Cap, Explained
OBBBA added language to 8 U.S.C. §1811(a) requiring that any TPS-based Employment Authorization Document 'shall be valid for a period of 1 year or for the duration of the designation of temporary protected status, whichever is shorter.' Before the law, qualifying TPS holders who filed timely renewal applications could receive automatic 540-day extensions of expiring EADs under 8 C.F.R. §274a.13(d)(1) to avoid work-authorization gaps.
USCIS applied the new one-year cap retroactively through a March 2026 website update, announcing that any 540-day extension issued before July 21, 2025 would be valid no later than July 22, 2026 — regardless of the extension's original expiration date. The court held this was not an impermissibly retroactive application of the statute, reasoning that TPS holders had 'no legitimate expectation in the duration' of a work authorization and that the policy 'concerns a future expiration date.'
Later USCIS Notices Change the Practical Position
An August account saying that all affected permits had expired is no longer an adequate guide. USCIS currently says Salvadoran individuals present in the United States under TPS retain protection, including work authorization, until the agency makes a further announcement. The September 9 date still visible in the country-page table must be read together with that express continuation alert. It is not an instruction to stop working on September 9.
For Sudan and Ukraine, USCIS describes extensions through October 19, 2026 for qualifying beneficiaries with pending renewal applications or previously issued cards expiring before the designation period ends. The agency provides a notice to be used with the applicable A12 or C19 EAD, subject to the conditions on each country page, including that TPS has not been withdrawn and the relevant application has not been denied. A country name or an old card date alone is therefore insufficient to establish a particular worker's authorization. These administrative notices, the person's category and renewal record, and the court ruling must be considered together.
The Annual Asylum Fee: What Changed and What Didn't
OBBBA created a new requirement that asylum applicants pay an Annual Asylum Fee for every year an application remains pending. The April 2026 interim final rule reiterated that mandate and added that failure to pay within 30 days could result in rejection of the application and, in some cases, initiation of removal proceedings. The same rule also eliminated a prior requirement that USCIS process initial asylum-based work permit applications within 30 days of filing.
The fee obligation itself remains in place. What the court blocked, on a preliminary basis, were the specific penalties — application rejection and referral to removal proceedings — for nonpayment. According to case trackers, USCIS had been prepared to reject 227,186 pending asylum applications before the penalties were paused. Separately, USCIS reinstated the 30-day processing requirement for initial asylum-based work permits through a July 21, 2026 correcting amendment, a change the government made independent of the court's later ruling.
Procedural History Since the Ruling
The litigation did not end with the August 5 order. Plaintiffs filed a notice of appeal and sought an emergency stay pending appeal from the First Circuit Court of Appeals on August 6, 2026. The First Circuit initially denied that request without prejudice, directing plaintiffs back to the district court, which also denied a renewed stay motion on August 10, 2026. Plaintiffs then returned to the First Circuit with another emergency motion; that appellate court denied an immediate administrative stay but ordered briefing to continue. By August 20, 2026, plaintiffs withdrew their emergency stay motion after the government extended work permits for the three affected TPS populations through country-specific actions described above.
Because the August 5 order addressed only the stay motion, it is not a final adjudication of whether the Cap Policy or the asylum fee penalties are ultimately lawful. The underlying case, including final merits determinations, remains pending in the District of Massachusetts.
Clinch Law Legal Analysis
Sources
- https://www.fragomen.com/insights/united-states-federal-district-court-allows-employment-authorization-for-beneficiaries-of-el-salvador-ukraine-and-sudan-tps-to-expire.html
- https://asaptogether.org/en/uscis-aaf-lawsuit/
- https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-el-salvador
- https://asaptogether.org/media/1vFSAzsLsC6IcESBoC3RhF/2026.08.05_VAM_v._USCIS_Memorandum_and_Order.pdf
- https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-sudan
- https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-ukraine
- https://public-inspection.federalregister.gov/2026-08333.pdf
This article provides general information and does not constitute legal advice. Immigration outcomes depend on individual facts and current law.
For a TPS holder whose employer asks whether an old card has expired, the useful starting point is the current country notice and the person’s renewal record. The August ruling did not give every worker a new expiry date. USCIS now expressly continues El Salvador protection and work authorization pending another announcement; Sudan and Ukraine have conditional extensions documented by agency notices. An employer should examine the permitted combination of card and notice before treating the date printed on the card as conclusive.
For an asylum applicant, payment and penalties are separate questions. The court has paused USCIS’s implementation of consequences for missing the annual fee while the case proceeds, but it has not cancelled the fee itself. Check the applicable payment instructions and keep evidence of any payment or access problem. The preliminary ruling also does not resolve an individual asylum claim or guarantee how later litigation will end. A person should not assume that relief concerning a USCIS fee governs a separate immigration-court payment requirement.
Questions Clients Are Asking#
Does the August 2026 court order mean my TPS work permit has already expired?
Not necessarily. The August order did not establish a single expiry date for all TPS holders. USCIS currently continues El Salvador protection and work authorization pending a further announcement. For Sudan and Ukraine, specified qualifying beneficiaries have notice-based extensions through October 19, 2026. Check the country instructions against your card category, renewal record, and extension notice before concluding whether you may work.
Do I still have to pay the annual asylum fee while this case is pending?
Yes. The court did not block USCIS from charging the Annual Asylum Fee itself; it only paused the penalties — rejection of your application and initiation of removal proceedings — for missing a payment deadline. You should continue checking regularly whether a fee is due and pay it as soon as possible to avoid complications if the stay on penalties is later lifted or narrowed.
Is the August 5 ruling the final word on these USCIS policies?
No. The decision resolved only a motion to stay agency action under the Administrative Procedure Act, applying a preliminary-injunction-style standard. It is not a final ruling on the merits. The case continued after August 5 with an appeal, further emergency motions in both the district court and the First Circuit, and additional USCIS policy actions, so the ultimate legality of these rules remains undecided.