Temporary Protected Status: Prospects Under the Biden Administration

By Hannah Bossert and Jayesh Rathod*

National TPS Alliance holding a press conference and vigil in Washington, DC/ uusc4all/ Flickr/ Creative Commons License

In the swell of immigration reform discussions in Washington, Temporary Protected Status (TPS), one form of humanitarian protection, has received significant attention from policymakers and advocates, but the Administration of U.S. President Joe Biden has yet to signal its intended action for significant TPS decisions arising later this year and next.

  • Codified in U.S. immigration law, TPS provides relief from removal and work authorization for nationals of designated countries affected by ongoing armed conflict, natural disaster, or other extraordinary and temporary conditions. The Secretary of Homeland Security makes TPS designations for anywhere from six to 18 months, with no legal limit to the number of renewals. When conditions allow for a safe return, the federal government may choose to terminate the designations.
  • As part of its agenda set on restricting immigration, the Trump Administration attempted to end TPS for six countries (including four in Latin America), prompting litigation that has extended the designations while courts review the legality of the terminations.

The Biden Administration has only begun to formulate its policies regarding TPS, which will have a major political and economic impact on immigrant communities in the United States and on the region as a whole. Twelve countries worldwide have been TPS-designated, protecting approximately 320,000 individuals, for a number of years. In March, the Administration extended protection to an estimated 323,000 eligible Venezuelans, and designated Burma in May. But pending decisions include the following:

  • Today nearly 200,000 nationals of El Salvador are protected by a designation made in 2001. Designations in 1999 for Honduras and Nicaragua currently protect around 60,350 and 3,200 persons, respectively. Thanks to federal court injunctions, these work permits and protections from removal remain valid through October 4. The Biden Administration recently agreed to participate in settlement discussions to resolve the pending litigation. The White House might find a way to extend work authorization for the existing beneficiaries; alternatively, it might re-designate these countries for TPS, which would offer protection to tens of thousands who arrived after the initial designation dates. Given the roadblocks that many Central American migrants face in advancing asylum claims, re-designation could be the more attractive option as it would alleviate immigration court backlogs and would not require Congressional authorization.
  • Re-designation was the Biden Administration’s preferred course of action for Haiti, which was also subject to a Trump-era termination effort. On May 22, DHS Secretary Alejandro Mayorkas re-designated Haiti for 18 months, expanding coverage to 100,000-150,000 new arrivals and providing an opportunity for those nearly 41,000 Haitians deriving status from the earlier designation to re-apply. The devastating effects of COVID‑19 and the instability surrounding the recent assassination of President Moïse both complicate return for Haitian nationals.
  • Members of Congress recently penned a bicameral letter urging the Administration to consider TPS designations or redesignation for 17 countries, including El Salvador, Honduras, and Nicaragua, as well as the Bahamas and Guatemala. A Guatemala designation, recently re-requested by the country’s government in the wake of severe hurricane damage, would change its decades-long outlier status when compared to its Central American neighbors.

Despite its name, TPS has enabled decades-long residency for hundreds of thousands of migrants, allowing them to build lives and families in the United States. TPS beneficiaries from El Salvador, Haiti, and Honduras alone contribute roughly $4.5 billion to the U.S. economy, including an average yearly contribution of over $691 million to Medicare and Social Security. Despite past stagnation in considering longer-term relief for TPS holders, the reality of TPS has prompted new advocacy in Congress aimed at creating pathways to citizenship for beneficiaries via proposed legislation such as the American Dream and Promise Act of 2021 and U.S. Citizenship Act, as well as calls to enshrine these efforts within the budgetary process, as in Senator Bernie Sanders’s Budget Reconciliation Bill.

  • Congressional action has become even more critical given the Supreme Court’s recent unanimous decision in Sanchez v. Mayorkas, which cut off the primary pathway to lawful permanent residence for TPS holders who had entered the United States without permission. This decision, absent  Congressional action, leaves hundreds of thousands in a prolonged and uncertain status. Given the current political climate in Washington, the path forward remains unclear.

July 21, 2021

* Hannah Bossert is  a second-year law student at the Washington College of Law and Dean’s Fellow for the Immigrant Justice Clinic, and Jayesh Rathod is Professor of Law and Director of the Immigrant Justice Clinic at the Washington College of Law.

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