Is TPS Really Temporary?

Among many other hot-button issues in immigration right now, the termination of Temporary Protected Status (TPS) for nationals of certain countries has many people concerned.  Between 2018 and 2019, nationals present in the US from El Salvador, Haiti, Nicaragua, and Sudan (not South Sudan) with TPS will no longer be able to renew their status.

Under the program, the Secretary of the Department of Homeland Security may designate a foreign country as “unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state” due to natural disaster or as subject to “ongoing armed conflict” or other “extraordinary and temporary conditions” such that repatriation of its nationals could not be completed safely.  Nationals of countries so designated are eligible for TPS, which allows them lawfully to remain in the US and receive employment authorization for the duration of the TPS designation, initially 6-18 months plus 6, 12, or 18-month renewal increments until termination. [1]

In the case of nationals losing eligibility for TPS benefits in 2018 and 2019, the chart below provides basic details:

TPS chart.jpg

The chart highlights the not-so-temporary nature of the TPS benefit in practice.  Indeed, children born to TPS beneficiaries in the United States from multiple countries have become legal adults in the period of time that their parents have remained in the United States under the program.  Moreover, it should be noted that, in order to be eligible for TPS, one does not have to have come to the US immediately preceding the designation date; indeed, some nationals of TPS designated countries had been present years prior to the TPS benefit which granted relief from removal and provided employment authorization, regardless of their prior unlawful presence.[2]

These facts immediately raise certain questions: If the program is designed to be temporary with a maximum initial period of 18 months, why have designations been renewed without fail year after year by executive administrations of both political parties, sometimes for decades?  After 10 years or more, are designated countries still unable to recover sufficiently from the circumstances warranting a TPS designation to enable them to repatriate their nationals “adequately” and “safely”?  Does TPS constitute de facto amnesty for nationals from designated countries, despite no path to legal permanent resident or citizen status?  Does duration of TPS designation beyond 10 years create any moral obligation of the US or legal rights of TPS beneficiaries upon the termination of TPS benefits?

Perhaps these questions are really beyond the scope of one blog post.  However, it is clear that the current practice of “kicking the can down the road” administration after administration for as long as 20 years or more is creating more problems than TPS was ever intended to solve.  It also seems erroneous and even patronizing to presume that a designated country cannot recover sufficiently in fewer than 10 years from a natural disaster, in order at a minimum, to repatriate its own nationals.  Indeed, the uncertain nature of TPS – that it requires renewal roughly every year and has no certainty of renewal – creates unnecessary stress for beneficiaries, and when TPS designation is finally terminated and benefits cease decades later in most instances, beneficiaries are left with the undesirable position of being required legally to leave their home of 10-20 years to repatriate to a country they might never have revisited within that same period of time.  Additionally, most TPS beneficiaries have families in the United States including US-born, US citizen children, or even grandchildren.  TPS beneficiaries may not have been admissible or might have been in removal proceedings at the time they obtained TPS, and the circumstances of their inadmissibility might not have been resolved over time, leaving them with no other options of eligibility for legal permanent resident status or citizenship.  Possible solutions to the pitfalls of TPS as currently exercised may include Congressional action to include a maximum total duration for any TPS designation, say 10 years, providing much needed certainty in the program.  Additionally, Congress could provide certain channels to legal permanent residency and/or citizenship for TPS beneficiaries lawfully admitted to the US prior to their approval for TPS benefits and who have been provided TPS benefits for the maximum period of TPS designation.

Toikka Law Group is happy to answer questions of TPS beneficiaries and explore options currently available to you, whether or not your country’s designation for TPS protection has terminated and benefits will cease within the next 18 months.  You might be currently eligible for immigrant benefits and/or you might have defenses to removal if you were in removal proceedings prior to your approval for TPS benefits.

Copyright © 2017, Rachel L.T. Rodriguez.  All rights reserved.

[1] See INA Section 244, or 8 USC § 1254 and 8 CFR Part 244, generally.

[2] See 8 CFR § 244.3, providing that nearly all but national security, Nazi affiliation, and criminal/drug offense reasons for inadmissibility are either not applicable to TPS or may be waived.