THE DEATH OF TEMPORARY PROTECTED STATUS (TPS), AND WHY YOU SHOULD CARE
What Is TPS? If you care at all about immigration law, you have probably read in the newspapers and heard in the media that “TPS” for Nicaragua was recently ended by the Trump administration (11/06/2017), and that it was also terminated for the island nation of Haiti (11/20/2017). There are also we-founded rumors that TPS for Honduras is next on the chopping block. To understand what this means in real-life terms, it is first necessary to understand what TPS is, and what effect its termination has on foreign citizens in America who were granted it.
TPS – A Definition. TPS is a power granted to the Secretary of the Department of Homeland Security (DHS) to designate a foreign country for “Temporary Protected Status,” where conditions in that country “temporarily” prevent the country's nationals from returning safely to their country, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. Typical conditions leading to grants of TPS in the past have been military conflicts, such as civil wars, environmental disasters, such as earthquakes or hurricanes, or disease epidemics; or “other extraordinary or temporary conditions.”
TPS is usually granted for 18-month periods, subject to the secretary of DHS re-designating or extending TPS where country conditions warrant it.
TPS – Eligibility. Not everyone from the TPS designated country who is in the United States is eligible to apply for TPS benefits. Normally, there is a designation date for applications, and an application cutoff date. Foreign citizens applying for TPS must be able to prove physical presence in the United States on the designation date, and they must apply for TPS by the initial cutoff date. If the DHS Sec. determines that TPS should be extended, applicants must also make a timely reregistration application. The rule basically is “use it or lose it.”
No TPS for Individuals with Significant Criminal Records. In addition, foreign citizens from TPS designated countries are ineligible for TPS benefits if they have one felony or two misdemeanor convictions, or otherwise are ineligible on national security or other grounds. On the other hand, even someone with a final order of removal who is TPS eligible can remain because the whole idea behind TPS is that conditions in the home country are so dangerous that a return should be placed on hold due to humanitarian reasons.
There are three significant benefits of TPS status.
First and foremost, someone who is undocumented in the United States from a TPS country, or someone who even has a final order of removal, is protected against deportation so long as they remain eligible (haven’t gotten into legal trouble) and the TPS designation for their country remains in effect.
Second, they can apply for and obtain work authorizations that allow them to work legally in the United States. Grant of these privileges opens the door to obtaining a Social Security number, and a driver’s license, thus allowing a TPS grantee to participate fairly fully in American society and economic life.
Third, TPS grantees may apply for something called “advance parole,” which gives them the right to temporary travel overseas without loss of their TPS status. Returning legally from in advance parole may also help them enormously in obtaining permanent resident status because they have entered the United States legally, and may have another basis for obtaining it, such as marriage to a US citizen.
Historical Practice for TPS Designated Countries – the Long and the Short of It. How long a TPS designation lasts does depend on actual country conditions. Some TPS designations have been of relatively short duration. A good example is the country of Sierra Leone, which was one of several in West African countries that was designated for TPS due to the Ebola outbreak there. When the public health crisis passed, the TPS designation was dropped. Similarly, TPS was ended for the West African country of Liberia a number of years ago after their society had stabilized following the long civil war there.
Other countries have societal problems so great that the impact of a catastrophic event, such as a hurricane, may tip them into failed states status where no reasonable person could expect that foreign citizens returning there could do so safely or be reasonably reintegrated into the home country’s society and economy.
Perhaps the biggest example of this is Honduras, which obtained a TPS designation in 1999 as a result of Hurricane Mitch, which completely devastated the country’s infrastructure. In the intervening years Honduras has gone from bad to worse. Significant governmental instability has been compounded by the effective loss of control of large areas of the country to criminal gangs, which prey on the citizenry.
The same can be said for Haiti, which was ravaged by a major earthquake in 2010, and which remains a country with a ruined infrastructure, chronic political instability, and no real economic opportunity.
The Cruel Effect of Withdrawing TPS Designations for Failed States. America used to pride itself on being a country that welcomed those in extreme need, and that was open to assimilating people from diverse cultures. The American “melting pot” is one of our most pervasive values. This norm has been honored by successive TPS re-designations by multiple Presidential administrations, Republican and Democratic alike.
But, withdrawing the designations of TPS from Nicaragua and Haiti and, apparently, from Honduras in the near future, shows that America is now sending exactly the opposite message. We no longer care about the catastrophic effect of withdrawing TPS benefits for citizens of countries that cannot assimilate returning populations from our shores.
The American “melting pot” is now more myth than reality.
Having years of experience dealing with people from Haiti and Honduras, I feel that we are sending long-term contributors to our society back to countries where there is no longer any real place for them. These people will be doomed to years of unemployment, subsistence living at best, and at worst significantly shortened lives due to disease and the risk of violent death from criminals. Honduras, for example, is now widely considered the “murder capital of the world,” and anyone sent back there from the United States will be considered a prime target for crimes as so-called “rich Americans.”
What to Do?
I cannot really speak to the politics of this development other than as I have above. However, anyone in jeopardy of loss of TPS status should immediately consult with an immigration attorney, because there may be other ways to remain in the United States legally.
Brian O'Neill, Attorney