When Temporary Isn’t:

TPS

Temporary Protected Status (TPS) is a humanitarian immigration program designed to allow non-US citizens who are in the United States and are unable to return to their countries of nationality to remain in the US until country conditions have improved. As its name states, it is intended to be a temporary status, with people returning to their home countries as soon as conditions improve. In practice, TPS has not proven to be temporary.

The TPS Process

The Secretary of Homeland Security, in consultation with the Secretary of State, may designate a country or part of a country for TPS. The Secretary may do so when the foreign country is experiencing:

· an ongoing armed conflict, or

· an environmental disaster, or

· extraordinary and temporary conditions that prevent citizens of that country from safely returning and permitting the alien* to remain in the US is not contrary to the national interest of the United States

TPS may be designated for 6 to 18 months.

Once a country or part of a country has been designated with TPS, citizens of that country or area who are in the United States may apply for the status. The application is adjudicated by US Citizenship & Immigration Services. If granted, the alien receives documents showing the grant of status and work authorization.

One key element of TPS is that it may only be granted to aliens who are physically present in the United States. It may not be granted to aliens who are outside of the United States or at a US port of entry. It is intended to provide temporary relief from the possibility of being deported (for example, if the alien entered the United States illegally or overstayed a period of authorized admission). When country conditions improve, the Secretary may end the TPS designation. If TPS designation is ended, the citizens of that country who were granted the status are expected to return to their home countries, unless they have another legal immigration status which permits their continued presence in the United States.

Some Realities of TPS

While TPS is intended to be a temporary status, providing humanitarian protection for citizens of countries experiencing extraordinary and temporary adverse conditions, it has been come to be more of a quasi-permanent status for many countries. Honduras and Nicaragua have been designated with TPS since 1999 (the current period expires in January, 2015) – 16 years. El Salvador has been designed with TPS since 2001 (the current period expires in March, 2015) – 14 years. These are very long periods for a “temporary” status.

As mentioned above, TPS may be granted to aliens in the United States. It may not be granted to aliens who are outside of the United States or who are applying for admission to the United States. TPS simply means that citizens of a country with the designation are not required to return home until country conditions improve. While TPS may be criticized for appearing to be a draw for illegal immigration, this is questionable. It does grant a legal status to people who may be in the US illegally, but, given the requirements (particularly residence requirements) of the program, people entering the country for the first time will generally not qualify.

Also arguing against the theory that TPS provides an inducement for illegal immigration is the fact that an alien granted TPS is not allowed to adjust their status to Lawful Permanent Resident (LPR) – that is, to become a person with a green card. Congress must enact a special act in order for an alien with TPS to adjust status. Legislation has been introduced in past Congresses but not passed. Aliens with TPS status, while they may have the status for many years, will not be able to remain in the United States past the expiration of TPS, unless a special act of Congress is passed.

So, although TPS has been a long-lasting designation for many countries and many citizens of those countries in the United States, it can have an end. One area of concern with TPS is that, once it a country has been designated with the status, the government has been reluctant to end the designation. This creates the appearance of permanence.

Some of the long-range policy implications of allowing a temporary status to continue for decades are: creating a disincentive for people to return to their home countries; creating an appearance of a permanent program while the true aims of the program are to provide temporary relief; creating expectations among recipients of the status that they will somehow be able to remain in the US, regardless of what happens; and the temptation to use humanitarian programs, like TPS, as a means of creating a legalization program without calling it legalization.

TPS, when used as intended, can provide much needed assistance to countries that have experienced large-scale adverse events. Allowing TPS to become a quasi-permanent status does not serve the United States, the countries designated with TPS or the aliens who receive TPS status well.

*As used in this essay, “alien,” means a person who is not a citizen or national of the United States.

Further Reading

Congressional Research Service, “Temporary Protected Status: Current Immigration Policy and Issues”

US Citizenship & Immigration Services, “Temporary Protected Status”