Temporary Protected Status in the United States: A Grant of Humanitarian Relief that Is Less than Permanent
Temporary Protected Status in the United States: A Grant of Humanitarian Relief that Is Less than Permanent
From a massive typhoon in the Philippines last November to the ongoing civil war in Syria, recent global events demonstrate that natural disasters and political strife occur suddenly and often without warning. Individuals residing in countries that have been affected by natural or man-made disaster often face catastrophic consequences, including being internally displaced or forced to seek refuge beyond their country’s borders. Nationals already residing outside their country of origin when disaster strikes it are protected from the event’s immediate aftermath, but may face an inability to return home if the political or economic situation is too precarious.
Since 1990, the United States has granted a form of humanitarian relief called Temporary Protected Status (TPS) to nationals of certain countries that have become embroiled in violent conflict or suffered a natural disaster. An estimated 340,000 people currently hold TPS status. As its name implies, TPS is not a grant of permanent legal status in the United States. Recipients do not receive lawful permanent residence (a “green card”), nor are they eligible, based on their TPS status, to apply for permanent residence or for U.S. citizenship. Rather, TPS beneficiaries receive provisional protection against deportation and permission to work in the United States for a limited period of time. The United States can end a country’s TPS designation once it has recovered from the triggering event.
Despite these limitations, the demand for TPS is likely to grow. As the world adjusts to climate change, scientists predict that the number of severe weather events—such as floods, droughts, hurricanes, tornadoes, and wildfires—will increase, forcing more people to migrate. In 2012 alone, an estimated 29 million people were displaced by extreme weather events. National intelligence estimates prepared by the U.S. intelligence community have predicted that changing weather patterns could contribute to political instability, disputes over resources, and mass migration.
Temporary Protected Status: Origins, Criteria, and Current Use
Congress created TPS in 1990 to establish a uniform system for granting temporary protection to people unable to return to their home countries because of a political or environmental catastrophe. Before 1990, the executive branch dealt with this scenario by designating certain countries for Extended Voluntary Departure (EVD), an administrative status that amounted to an exercise of prosecutorial discretion by the Attorney General not to pursue nationals of certain countries for removal if found to be living in the United States without authorization. However, there were no established criteria explaining how a country might qualify for EVD, and critics alleged that decisions regarding the grant of EVD to nationals of a particular country were often politically motivated. This argument became especially prominent in the late 1980s, when the Reagan administration decided not to designate El Salvador for EVD despite the country’s ongoing civil war.
To resolve the controversy, Congress created TPS, a statutory mechanism for granting protection against deportation to nationals of designated countries. Under current law, the Homeland Security Secretary may designate a country for TPS when one of three circumstances occurs:
- there is “ongoing armed conflict” that creates unsafe conditions for returning nationals;
- there has been an earthquake, flood, drought, epidemic, or other environmental disaster that makes the state temporarily unable to accept the return of its nationals, and the state has requested TPS designation; or
- “extraordinary and temporary” conditions in a state prevent its nationals from returning safely.
Once a country has been designated for TPS, its nationals who are residing in the United States at the time of the designation may be granted protection if they meet certain criteria. These include having been continuously present in the United States as of a date specified by the Department of Homeland Security (DHS), and having a relatively clean criminal record. The statute bars from receiving TPS those who have committed a felony offense, two or more misdemeanors, or engaged in the persecution of others. Similarly, individuals who have committed a controlled substance offense, a national security offense, or multiple criminal offenses are generally ineligible.
Individuals who are granted TPS receive two main benefits: a reprieve from deportation and authorization to work. TPS holders may also apply for special permission to travel internationally and return to the United States. TPS does not confer permanent residency, citizenship, or any right to ongoing immigration status. Once the U.S. government has ended a country’s TPS designation, TPS holders revert to their prior immigration status.
The government may grant TPS to individuals who initially entered the United States with a temporary visa and then remained once their visa expired, as well as those who entered without authorization. Individuals present in the United States on a valid nonimmigrant visa may also apply for TPS. However, only individuals who are within the United States at the time that a TPS designation is initially made are eligible to apply for protection (though the cutoff date has been extended in some cases). This provision was created in part to address concerns that a grant of TPS would lead to a surge in new immigration.
Beyond TPS, the executive branch retains discretion to designate countries for administratively based protection against removal, including EVD and Deferred Enforced Departure (DED). Like TPS holders, individuals with EVD or DED protection may not be deported and may apply for work authorization. In the past, the executive branch has sometimes used grants of EVD or DED to continue to protect nationals of a designated country after that country’s TPS designation has ended. For example, the George H.W. Bush administration granted TPS to Liberia in 1991, and the designation was extended through 1999. When Liberians’ TPS expired on September 28, 1999, the Clinton administration granted DED to those whose TPS had expired. Liberia was subsequently redesignated for TPS in September 2002. In 2006, the George W. Bush administration announced that it would end TPS for Liberians but would grant them DED. President Obama has since extended DED for Liberians until September 30, 2014.
Currently, there are approximately 340,000 TPS holders. This figure does not include an estimated 9,000 Syrians who became eligible to apply when DHS advanced the date to demonstrate continuous presence in the United States. It also does not include the additional 4,000 Sudanese or South Sudanese nationals DHS estimates may be eligible for TPS based on the advancement of the designation dates in those two countries.
The following chart shows the estimated number of TPS beneficiaries, by country of origin.
Table 1: Estimated Number of TPS Beneficiaries by Country, 2014
Sources: U.S. Citizenship and Immigration Services (USCIS), Extension and Redesignation of Sudan for Temporary Protected Status, 78 Federal Register 1872 (January 9, 2013); Extension and Redesignation of South Sudan for Temporary Protected Status, 78 Federal Register 1866 (January 9, 2013); Extension and Redesignation of Syria for Temporary Protected Status, 78 Federal Register 36223 (June 17, 2013); Extension of the Designation of El Salvador for Temporary Protected Status, 78 Federal Register 32418 (May 30, 2013); Extension of the Designation of Haiti for Temporary Protected Status, 79 Federal Register 11808 (March 3, 2014); Extension of the Designation of Honduras for Temporary Protected Status, 78 Federal Register 20123 (April 3, 2013); Extension of the Designation of Nicaragua for Temporary Protected Status, 78 Federal Register 20128 (April 3, 2013); Extension of the Designation of Somalia for Temporary Protected Status, 78 Federal Register 65690 (November 1, 2013).
The Ongoing Debates: TPS Extensions and Allowing TPS Holders to Adjust Status
The Homeland Security Secretary initially grants TPS for between six and 18 months, and can renew it indefinitely if conditions remain unsafe or the country is unable to handle the return of its nationals. Ongoing TPS renewals are a source of some controversy in the United States, as some believe that these renewals create a state of permanent temporariness for beneficiaries. Statistics indicate that some of those currently holding TPS have held that status for lengthy periods of time. For example, to qualify for TPS as a national of Honduras or Nicaragua, a registrant must show that he or she has been in the United States since December 30, 1998. Similarly, some Somali TPS holders have been in the United States for more than 20 years, as Somalia’s TPS designation has been continuously renewed since 1991.
Critics believe that lengthy TPS grants run contrary to Congress’s intent that the program be used to provide short-term protection. Immigrant-rights advocates generally assert that TPS renewals are the result of long-running international crises and catastrophes, as well as the fact that it may legitimately take a country many years after a TPS-triggering event to be able to safely repatriate its nationals.
A second TPS-related debate involves the ability of TPS holders to adjust to lawful permanent resident (LPR) status. As previously noted, a grant of TPS does not offer a path to a green card. However, some may become eligible to apply for permanent residence through other means, such as sponsorship by a U.S. relative or employer. Under current law, most TPS holders face a significant barrier to applying for LPR status from inside the United States. U.S. immigration law provides that noncitizens are generally not permitted to apply for adjustment of status within the country unless they had been formally admitted or paroled into the United States. DHS takes the position that a grant of TPS is not an admission or parole. Consequently, TPS holders who initially entered the country unlawfully are generally not eligible to adjust status, even if a U.S. family member or employer petitions for them.
In June 2013, however, a federal appeals court in Ohio rejected DHS’s interpretation and found that TPS did constitute a formal admission or parole. The decision allowed the plaintiff, a TPS holder from Honduras, to apply for adjustment of status based on a petition filed by his wife, a U.S. citizen. In June 2014, a U.S. district court in Washington State issued a similar decision. As a result, some TPS holders who live in Kentucky, Michigan, Ohio, and Tennessee (the states within the jurisdiction of the Sixth U.S. Circuit Court of Appeals) and in the western district of Washington State may now adjust status if they are the immediate relative (spouse, minor child, or parent) of a U.S. citizen. In all other jurisdictions DHS’s interpretation of the law holds sway.
TPS Beneficiaries: A Profile of Countries Currently Designated for TPS
Since the enactment of the Immigration Act of 1990, 19 countries have been designated for TPS. Eight countries currently are designated: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria. Most of the TPS grants for the Central American and Caribbean countries have occurred following natural disasters (in particular earthquakes and hurricanes), while African and Middle Eastern countries tend to gain designation in response to ongoing armed conflict.
This section provides details on the countries currently designated for TPS based on the year TPS was first granted, starting with the most recent.
Table 2: Countries Currently Designated for TPS
* TPS was first granted to residents of South Sudan in 1997 while still a part of Sudan.
Sources: U.S. Citizenship and Immigration Services, “Temporary Protected Status,” accessed March 19, 2013, www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status; Ruth Ellen Wasem and Karma Ester, Temporary Protected Status: Current Immigration Policy and Issues (Washington, DC: Congressional Research Service, 2011), www.fas.org/sgp/crs/homesec/RS20844.pdf.
Syria has the most recent TPS designation, initially granted in 2012. DHS renewed the designation and established a new cutoff date extending eligibility to Syrians in the United States as of June 17, 2013.
The violent repression of protests for greater political freedom in 2011 led to heavy fighting between the government of Bashar al-Assad and a range of rebel forces, including the alleged use of chemical weapons. The civil war has resulted in the deaths of more than 100,000 people and forced more than 2.8 million Syrians to seek protection in the region, according to the U.N. High Commissioner for Refugees. More than 4 million others have become internally displaced within the conflict-ravaged country. The humanitarian response has fallen hardest on Syria’s neighboring countries, although the United States has begun accepting some Syrian refugees for resettlement.
Separately, through its grant of TPS, Syrians in the United States as of the original designation in 2012 are being given protection. Currently, an estimated 2,600 Syrians hold TPS, though DHS estimates an additional 9,000 may be eligible as a result of the decision to advance the cutoff date.
Haiti first received TPS on January 21, 2010, following a devastating earthquake nine days earlier that left an estimated 1.5 million homeless, 300,000 injured, and claimed the lives of tens of thousands of people and possibly more (the death toll estimates vary widely from 46,000 to 316,000). Large sections of the capital, Port-au-Prince, were destroyed and the country experienced severe damage to its infrastructure, including hospitals, government buildings, roads, bridges, and the international airport. Electricity, water, and telephone services were all affected.
In May 2011, DHS advanced the cutoff date for Haitian applicants to have maintained continuous residency in the United States from January 12, 2010 to January 12, 2011 because of ongoing severe conditions. DHS has since extended the Haiti TPS designation, though it has not further advanced the cutoff date. Approximately 58,000 Haitians currently have TPS.
Honduras received TPS on January 5, 1999 as a result of the devastation caused by Hurricane Mitch in 1998. TPS for Honduran nationals has been extended continuously, with the current authorization lasting through January 5, 2015.
Honduras sustained the highest costs from Mitch, both in terms of human lives lost and in the dollar amount of damages. According to the National Climatic Data Center, Hurricane Mitch was the deadliest hurricane in the western hemisphere since 1780. The toll in Honduras included more than 7,000 dead and close to 12,000 injured. An estimated 77 percent of the population (5.4 million people) was affected.
Much of the damage caused by Mitch was due to mudslides and flooding, severely affecting the country’s infrastructure; 35,000 dwellings were destroyed and many schools and medical buildings were damaged. The country’s agricultural, manufacturing, and tourism sectors also saw major losses.
An estimated 64,000 Honduran nationals hold TPS, the second largest group after Salvadorans.
Nicaragua, like Honduras, first received TPS in 1999 following Hurricane Mitch; the designation has been extended continuously, with a current expiration date of January 5, 2015.
Hurricane Mitch pelted Nicaragua with torrential rains in October and November 1998, resulting in the deaths of more than 3,000 people, and leaving an estimated 500,000 people homeless. Approximately one-fifth of the population was affected. The Nicaraguan economy, already fragile, was dealt a further blow by the hurricane, which caused severe infrastructure damage surpassing $300 million to roadways, buildings, and utilities. More than 100,000 homes and hundreds of schools were damaged or destroyed, and the agriculture and tourism industries also suffered large losses.
An estimated 3,000 Nicaraguans currently hold TPS.
Sudan was approved for TPS in 1997 as a result of protracted civil conflict. When the independent state of South Sudan was recognized in 2011, DHS extended TPS to that country as well. The cutoff date for continuous physical residence in the United States for both countries has been advanced to January 9, 2013.
Sudan has spent most of the time since its 1956 independence from the United Kingdom embroiled in two civil wars. The second civil war, beginning in 1983, concluded with a comprehensive peace agreement signed in 2005, although violence continues to this day. Fighting between armed militia groups and antigovernment rebels displaced more than 4 million people and caused the deaths of an estimated 2 million. The U.S. State Department found that an increase in violence in 2012 resulted in the displacement of nearly 500,000 persons in the western region of Darfur, where heavy fighting has occurred.
In South Sudan, intense interethnic fighting broke out shortly after the country gained independence in 2011. Civil war erupted in December 2013. Though a cease-fire was signed one month later, news reports indicate that widespread violence continues. The ongoing conflict has destroyed much of the country’s infrastructure, trade, and oil production. According to the United Nations Office for the Coordination of Humanitarian Affairs, more than 800,000 people have been displaced from their homes since December, and nearly 255,000 have fled South Sudan for neighboring countries.
An estimated 300 people from Sudan and fewer than 10 from South Sudan hold TPS. However, DHS estimates that an additional 4,000 people from both countries may be eligible for TPS as a result of its decision to advance the cutoff date to January 9, 2013.
Of the currently designated TPS countries, Somalia has had TPS for the longest period; originally designated in 1991, the country’s renewal is set to expire on September 17, 2015.
Fighting in Somalia broke out in 1991 after insurgents affiliated with the United Somali Congress ousted dictator General Mohamed Siad Barre, who had ruled since 1969. In the chaos that followed, thousands were killed in the country’s capital, Mogadishu. By September 1991, when the United States first designated Somalia for TPS, hundreds of thousands of Somalis had fled the country.
Over the next two decades, inter-clan fighting, anarchy, and terrorist activity, combined with a series of droughts and famine, rocked the country, leaving an estimated half a million people dead. By 2006, members of the Islamist militant group al-Shabaab controlled Mogadishu and much of southern Somalia. Though African Union and Somali Army forces pushed al-Shabaab out of Mogadishu in 2011, terrorist attacks by the group continue. According to the United Nations, there are 1.1 million internally displaced persons in Somalia and 1 million Somali refugees outside the country. In addition, an estimated 2.7 million people in Somalia are dependent on humanitarian assistance for food.
The United States has extended Somalia’s TPS standing 19 times and has twice advanced the cutoff date. Under DHS’s most recent redesignation, applicants must show that they have been continuously present in the United States since September 18, 2012. There are an estimated 400 Somali TPS beneficiaries.
El Salvador was the first country to receive TPS and the only country to have been granted TPS by Congress, which initially designated El Salvador for TPS through the Immigration Act of 1990; that designation expired in 1992. In 2001, the Bush administration designated El Salvador for TPS a second time, and the status has been continuously renewed since 2001.
Congress first granted TPS to El Salvador to protect Salvadorans who had fled the country’s brutal civil war. Between 1980 and 1992 the Salvadoran government, guerilla groups, and paramilitary forces waged bloody campaigns that frequently targeted civilians, and included massacres, summary executions, and indiscriminate bombing. The war led to an estimated 70,000 civilian deaths, and more than $2 billion in damage. Hundreds of thousands of people fled El Salvador each year, many arriving in the United States. Some estimates indicate that between 1980 and 1990, one-quarter of El Salvador’s population fled the country.
El Salvador’s second designation for TPS, in 2001, came after the country was hit by three major earthquakes, which resulted in 1,100 deaths, thousands of injuries, and the displacement of an estimated 1.3 million persons. In addition, several hundred thousand homes, schools, and public buildings were damaged or destroyed.
An estimated 212,000 Salvadoran nationals have TPS, making this the largest group of TPS recipients.
The U.S. government has complete discretion to determine if it will designate a country for TPS. However, in the event of TPS designations by the U.S. government based on a natural disaster, the TPS statute requires that the affected country must officially request the designation.
While there is no publically available list of countries currently petitioning for TPS status, three countries are known to have made recent requests: Pakistan, Guatemala, and the Philippines. A Pakistani advocacy group requested TPS following severe flooding in Pakistan in 2010. Guatemala has requested TPS on numerous occasions, with the most recent request in 2012 following an earthquake. A current petition on the White House website requesting TPS for Guatemala has received nearly 30,000 signatures. In a formal response, the White House indicated that it advocates “pursuing commonsense immigration reform” to achieve a permanent solution to the hardships facing Guatemalans in the United States.
The government of the Philippines requested TPS following Typhoon Haiyan in 2013 through a note verbale to the State Department. DHS at times responds quickly to these requests or may let months (or even years) pass without providing a response.
The Debate Continues
Temporary protected status is a way for the United States to provide valuable protection to nationals of countries that have faced devastating events. The United States recognizes that deporting individuals to TPS-designated countries could result in undue hardship both for the individual and for the country as it attempts to recover. At the same time, there is debate within the United States about extending TPS for many years after the precipitating disaster, and whether TPS holders should be allowed to adjust their status to lawful permanent residence. These debates are unlikely to subside any time soon, as the demand for TPS will likely increase in the coming years.
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