With TPS Under Attack, USCIS Bars Some TPS Holders from Applying for Green Cards

Nepali Community Organization Adhikaar Discusses the Complexities of the TPS Process, Demonstrating the Absurdity of USCIS Policy

Protesters demand Temporary Protected Status for the Nepali community. (Photo: Asian American Writers’ Workshop)

Two weeks ago, the Department of Homeland Security (“DHS”) announced its cruel and unnecessary decision to terminate Temporary Protected Status (“TPS”) for Nepal. Currently, about 9,000 Nepalis receive protection from deportation and work authorization under TPS, a humanitarian aid program created by Congress to shelter people from certain countries that have been devastated by war or natural disaster. But following the DHS decision, thousands of Nepali TPS holders will be in immediate danger of deportation when their lawful status ends on June 24, 2019. For many, returning to Nepal is simply not an option. When a 7.8 magnitude earthquake struck the country in 2015, it killed 9,000 people, leveled 750,000 homes, and reduced 900 health care facilities and other vital public infrastructure to rubble. To date, only a tiny fraction of the reconstruction has been completed and millions remain displaced. Moreover, returning to Nepal would force TPS holders to abandon their jobs, businesses, homes, and families here in the U.S.

Now thousands of Nepali TPS holders are in a race against the clock to find a way to stay in the U.S. lawfully. Over the years, TPS holders have laid down firm roots in their communities, marrying U.S. citizens, raising U.S. citizen children, working, and growing their own businesses. With firm ties to the U.S., many qualify to apply for lawful permanent residency (i.e., a green card). For some TPS holders who entered the U.S. without inspection before gaining TPS, the only thing standing in the way of applying for a green card is the U.S. government, specifically, U.S. Citizenship and Immigration Services (“USCIS”). USCIS has a rule prohibiting TPS holders who initially entered the U.S. without inspection from applying for and receiving a green card in the U.S. under the logic that they have not been sufficiently “inspected” or vetted. Two Courts of Appeals have struck down this policy saying that all TPS holders can adjust their status in the U.S. However, those decisions only apply where those courts sit, not in the whole country, meaning that USCIS’s foolhardy policy still applies in most of the country.

We decided to speak with Adhikaar, a Nepali-focused worker center and community center based in Queens, New York, to better understand the experiences of Nepali TPS holders. Pabitra Khati Benjamin, Executive Director of Adhikaar, and Maya Gurung, the Case Coordinator, discussed what it takes for Nepalis to obtain TPS, and what TPS means for their community. Adhikaar’s experiences helping community members apply for TPS illustrate the complexity and rigor of the TPS “inspection” and application process, and why USCIS’s policy is simply nonsensical.

Adhikaar, a community organization advocating for TPS holders

For over a decade, Adhikaar has provided a full spectrum of services to the local Nepali-speaking community in New York, including organizing and educating domestic workers and nail salon workers against wage theft and labor exploitation, and helping community members navigate health care options and apply for benefits. Adhikaar works to build leadership capacity within marginalized communities and to build change in the U.S., offering citizenship classes, political education classes, Know Your Rights sessions and worker organizing events, and engaging in campaigns to turn workers into community advocates. When the earthquake hit Nepal in 2015, Adhikaar galvanized into action, immediately hosting community rallies and vigils in the Jackson Heights neighborhood and in Times Square, where community members came together and collectively decided to push for a TPS designation for Nepal. That summer, Adhikaar conducted a national campaign to secure TPS for Nepal, which DHS granted in June 2015.

With TPS terminated for Nepal, Adhikaar continues to fight for comprehensive immigration reform that is inclusive of all TPS holders, working toward legislative solutions that would provide all TPS holders with permanent residency. The ongoing national conversations about family immigration often overlook TPS holders, and Adhikaar works to combat this limited understanding of “family.” To this end, Adhikaar formed a TPS Core Committee whose members work with TPS holders from different communities like El Salvador and Honduras, with the purpose of having all affected communities on the front lines asking Congress for a permanent solution for all TPS holders.

TPS: A Complex and Rigorous Process

To help community members apply for TPS, Adhikaar acted swiftly to set up clinics where community members could sit down with attorneys, immigration experts, and interpreters to fill out their TPS applications. Without any lawyers on staff, Adhikaar partnered with the New York Immigration Coalition to connect pro bono legal service providers with applicants. From June to December 2015, Adhikaar held approximately 28 clinics, providing TPS-related services to over 600 people. In addition to in-person clinic services, Adhikaar fielded calls from more than 800 people from across the nation with TPS-related inquiries. During a one-day clinic event, held at a local school in Elmhurst, Queens, Adhikaar helped screen 150 Nepalis for TPS eligibility, and 135 TPS applications were filed. After Nepal’s TPS designation was renewed in 2016, Adhikaar assisted community members with re-registration during the two-month window, partnering with former legal service providers to host 16 clinics that served approximately 500 people.

Prior to the clinic appointment, TPS applicants had to gather extensive documentation to prove they meet the stringent physical presence and residency requirements of TPS. For community members, this often means submitting letters from their U.S. employers, recent payroll stubs, rent receipts from housing in the U.S., or proof of property ownership in the U.S. Applicants also frequently submit bank statements from U.S. accounts, copies of utility bills sent to their U.S. address, as well as school or medical records for themselves or their children. Often applicants also require affidavits from family members or religious leaders attesting to their physical presence in the U.S. on a certain date, and for this Adhikaar created template affidavits that applicants could then take to friends and family members for personalization and signature. Once the documentation was ready, community members met for one-on-one clinic interviews with pro bono attorneys. Each interview lasted about 30–45 minutes, but in 2015, about 30% of applicants needed to return for a follow-up appointment due to the complex nature of their case. After compiling this extensive documentation and mailing in the completed TPS application, applicants then had to make an appointment with USCIS for biometrics, including fingerprinting, so that USCIS could conduct criminal background checks.

Not only is the TPS application process intensive and time-consuming, it’s expensive. To keep costs at a minimum, Adhikaar recruited volunteer interpreters and translators to assist at the clinics, including recruiting students who were available during the summer months. All volunteers went through volunteer training with the New York Immigration Coalition in 2015, and in 2016, Adhikaar trained all volunteers. The clinics helped screen community members for free, which is especially important given that community members often need to save money to send back to family members in Nepal still struggling to rebuild after the earthquake. In 2015, the TPS application fee was about $135, and work authorization cost $380. In 2016, the fee for work authorization had increased to $410, and renewal applicants also had to pay a biometrics fee of $85. Applicants using Adhikaar’s pro bono clinic services paid only USCIS’s filing fees, whereas applicants applying for TPS through a private attorney paid substantial attorney’s fees in addition to USCIS’s filing fees, leading some applicants to pay more than $5,000 for their case.

Obtaining TPS status was life-changing for Nepali community members. TPS grants its beneficiaries protection from deportation as well as work authorization. Work authorization in turn allows TPS holders to apply for and maintain health insurance, and to support their family members here in the U.S. and back in Nepal as Nepal rebuilds after the earthquake. Nepalis with TPS feel more secure and can pursue jobs, education, and live with their families without fear of immigration enforcement. And now that TPS holders have held jobs for several years or have graduated from U.S. universities, U.S. employers are increasingly willing to help Nepali TPS holders adjust status to lawful permanent resident by filing an employment-based petition on their behalf.

Currently, USCIS is blocking a vital pathway to permanent legal status for thousands of TPS holders, claiming that these TPS holders haven’t been sufficiently “inspected.” The experiences of community organizations and service providers like Adhikaar tell a different story: gaining TPS isn’t easy — it requires a thorough application process and intensive vetting, with frequent re-registrations and background checks. To be clear, changing USCIS policy wouldn’t automatically give these TPS holders a green card — it would just give them the chance to apply for one. TPS holders who initially entered the U.S. without inspection would still have to meet all the other requirements for a green card and go through the normal application process. By continuing its senseless policy, USCIS unfairly places thousands of TPS holders at risk of deportation and forced removal from their families and livelihoods here in the U.S.