Biden Opened Temporary Legal Status To Thousands Of Immigrants. Here’s How They Could End Up Trapped.

President Joe Biden and congressional Democrats are working to rescue immigrants who’ve been living in the U.S. for decades under a “temporary” legal status. But the Biden administration is simultaneously extending that same status to hundreds of thousands more immigrants — putting them at risk of getting caught in a similar limbo. 

The problems posed by the temporary protective status program came into focus last week when the administration used executive authority to grant the status to as many as 300,000 Venezuelans and about 1,600 Burmese currently in the U.S. who are deemed unable to safely return home because of humanitarian emergencies in their countries. Activists and some elected Democrats are pushing the Biden administration to issue more TPS grants for immigrants whose home countries are suffering from war, natural disasters or other emergencies, including Haitians who arrived in the U.S. after 2011 and Cameroonians.

But right now, there is nothing to ensure that any of these immigrants will have a path to eventual citizenship. Although the House of Representatives is working on bills that would create such a path for those who already hold TPS — most prominently the Dream and Promise Act, which the House will vote on this week — those proposals do not apply to the people who are getting temporary status now, or who might get it in the future.

This threatens to leave them in a state of uncertainty that has become all too common in the 30 years since Congress created the TPS program: The relief is often not exactly temporary, but it’s not exactly permanent either.

Anthropologist Cecilia Menjívar of UCLA calls TPS “liminal legality,” a fragile status that leaves immigrants at the mercy of changing political winds. Many of those holding TPS have lived in the U.S. for nearly half their lives, hampered in their careers and ability to plan for the future with no hope of ever achieving citizenship under current law (despite working legally and becoming the backbone of key sectors like construction in many parts of the U.S.).

President Donald Trump threw the tenuousness of TPS into sharp relief when he attempted to strip protections from 95% of the immigrants who benefited from it, providing what Erik Villalobos of the National TPS Alliance called a “wake-up call” for many immigrants who had grown comfortable in the U.S. and relied on TPS to remain there. (Among them were Villalobos’ own parents, Salvadoran immigrants at risk of losing their TPS under Trump before Villalobos was able to sponsor them for green cards in 2018.)

A lawsuit successfully ran out the clock on Trump’s efforts, and the Biden administration thus far has taken a generous approach, extending TPS to new countries and renewing existing grants. But the uncertainties of the last four years have led both immigrants and elected Democrats to realize that, in Villalobos’ words, “we might need to look at what ‘temporary’ really means.”

Under current law, the “temporary” in TPS is supposed to be a stopgap solution for migrants who may return home in the foreseeable future, after their country bounces back from a momentary crisis. Congress created the program in 1990, after years of frustration with President Ronald Reagan’s refusal to grant relief to Salvadoran immigrants in the U.S. who’d fled that country’s brutal civil war. Congress mandated TPS’s use for El Salvador and authorized the executive branch to add countries to the list if they went through armed conflict, natural disasters or some other “extraordinary and temporary conditions” that made return unsafe. It set no caps on the number of people who could be granted the status.

After 18 months, the government is supposed to reevaluate and decide anew whether a given country is still in crisis and needs its TPS extended. If so, TPS holders are able to apply for another work permit (with its attendant $500 fee). If not, they are forced to choose between staying in the U.S. as unauthorized immigrants or going back.

But over its history, TPS has often morphed into something beyond a stopgap. Recovery, in practice, takes a long time.

The last time a country in the Western Hemisphere was designated for temporary protections was in 2010, when TPS was granted for Haitians in the United States after a debilitating earthquake. The status was extended three times by the Obama administration. When the Federal Register announced the third extension, it noted that while “most of the earthquake rubble has been cleared” a half-decade after the event, government buildings hadn’t yet been rebuilt and most ministries were still operating from temporary facilities.

Venezuela’s crisis appears just as intractable. Its economic and medical systems had collapsed even before the COVID-19 pandemic, causing the largest refugee crisis in the Western Hemisphere. In December 2019, the United Nations refugee office estimated that over 4.5 million Venezuelans had fled the country. It currently estimates that 5.4 million Venezuelans are displaced abroad, most of them in neighboring Colombia.

Advocates and some politicians spent years urging the Trump administration to extend TPS to Venezuelans currently in the U.S., to no avail. Finally, on Trump’s last night in office — with no explanation for the delay or the last-minute change of heart — he issued a proclamation giving them a similar but less formalized grant of protection (known as deferred enforced departure). Trump’s move attracted so little fanfare that Venezuelans celebrating Biden’s TPS grant last week often appeared unaware they were already allowed to seek work permits.

Meanwhile, immigrants with TPS are living their lives in the United States — working, settling down, getting married, raising U.S.-born children. Some immigrants have held TPS for decades — 79,290 Hondurans with TPS have been living in the U.S. since 1998, and 247,412 Salvadorans since 2001. In a survey of these two groups in 2016, researchers found that the median TPS holder was 43 and had been in the U.S. for 20 years — nearly half their life. Nearly one-third owned homes; nearly two-thirds had children who were U.S. citizens.

“For TPS holders, the fact that many of them have been here for so long — I think it just proves that nothing is temporary, if you’re giving someone the opportunity to create a livelihood here,” Villalobos said.

Asked what would happen to such people if they lost their status, Menjívar balked: “Goodness, I cannot even fathom.” For one thing, she said, they’d be unlikely to leave on their own if stripped of protections; they’d just become unauthorized immigrants living in the shadows, and they’d have to be “shackled and forced on planes” if the U.S. wanted to ensure their departures. Deportees would find themselves isolated. “They wouldn’t have a source of living, they’d lose everything they have, their family,” Menjívar said. “It amounts to a social death in many ways.”

But while living in the U.S., they’re continually reminded of their marginal status. By bureaucratic definition, they’re not even immigrants — technically that term is reserved for someone who is on track to reside permanently in the United States. “Even the fact that they have to renew it every 18 months,” said Menjívar, “indicates to them that it’s not secure.”

That threat became much more real under the Trump administration. “Temporary means temporary,” Trump’s first Department of Homeland Security secretary, John Kelly (later the White House chief of staff), said when warning that Haitians would likely lose their protections in 2017.

In its first 18 months, the administration announced end dates for TPS for Haitians, Hondurans, El Salvadorans, Nicaraguans, Sudanese people and Nepalis, amounting to 95% of TPS holders. Often, while the administration pushed for declaring the countries “recovered” from their temporary crises, diplomats lobbied for their citizens to be allowed to stay in the U.S. In 2019, Salvadoran foreign minister Alexandra Hill used a joint press conference with then-acting DHS secretary Kevin McAleenan — which was ostensibly held to celebrate the countries signing a “cooperative agreement” that would allow the U.S. to send asylum-seekers to El Salvador — to stress the importance of continuing TPS for Salvadorans.

Meanwhile, TPS holders from different countries organized to protect themselves, ultimately forming the National TPS Alliance and spurring a lawsuit against the Trump administration.

Federal judges prevented Trump from stripping TPS designations while they evaluated whether his administration had violated federal law by not properly deliberating the options and weighing expert opinion. (Emails produced as part of the lawsuit revealed that DHS had asked analysts to supply evidence that conditions in Haiti were improving to justify terminating TPS; a Trump appointee complained that a memo on Sudan, meanwhile, “reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo.”)

While the matter played out in court, the DHS kept extending the validity of TPS holders’ work permits. When the 2nd Circuit ruled last fall that the Trump administration could end TPS for the affected countries, DHS had already extended immigrants’ work permits through October 2021. The Biden administration is expected to return to the pre-Trump status quo and continue the extensions.

But the saga was a chilling reminder of life’s fragility under TPS. In the fall of 2017, even before the Trump administration moved to terminate TPS for Salvadorans, a study of Central American immigrant parents found that the overwhelming majority of TPS holders were anxious about their futures and the prospect of being separated from their children. Nearly half of TPS holders surveyed scored as “highly distressed” — twice the rate of unauthorized immigrants.

Living as a temporary resident confines people to the margins in other ways as well. TPS holders make more money than unauthorized immigrants, but they’re less likely to be homeowners — an indication, Menjívar wrote in a report last year, that “long-term uncertainty undermines plans for the future.” And while the overwhelming majority work, they don’t show the same patterns of economic integration over time that permanent immigrants do — more-educated TPS holders, for example, don’t necessarily hold more lucrative or skilled jobs than their less-educated counterparts, indicating that they’re not able to fully put their education to use.

At the same time, new forms of liminal legality have blossomed. The Deferred Action for Childhood Arrivals program, another form of executive relief that requires regular renewals, is another fragile status that could be terminated or struck down by the federal courts at any time. Asylum-seekers often spend years in limbo waiting for their applications to be reviewed, since both immigration courts and U.S. Citizenship and Immigration Services offices are severely backlogged.

Biden and congressional Democrats want to give most people in these groups the ability to apply for permanent legal status, with the option of eventually seeking citizenship. Democrats have recently embraced the idea that immigrants with TPS should be allowed to expedite their path to citizenship — and that they should be legalized even if the unauthorized-immigrant population in its entirety is not.

One option for addressing the issue posed by extending TPS to Venezuelans and Burmese people would be to amend the existing legalization bills in Congress. Even as the House votes on the Dream and Promise Act, Democrats are still debating whether it and similar piecemeal bills legalizing some groups of immigrants should be the legislative priority, or whether they should push for a single broader overhaul of the immigration system — like the U.S. Citizenship Act, based on Biden’s “day one” immigration plan. A previous version of the Dream and Promise Act got seven Republican votes in 2019; many Republicans currently oppose any bill that would legalize unauthorized immigrants without increasing funding for border enforcement or restricting asylum for those arriving in the United States.

A representative for Sen. Bob Menendez, D-N.J., the lead sponsor of the U.S. Citizenship Act in the Senate, said that he’ll be “exploring ways” to ensure relief for Venezuelan TPS holders. Sponsors of the Dream and Promise Act did not reply to requests for comment.

But even if immigrants granted TPS are included in the bill as it goes through Congress, neither bill includes any provision that would change the TPS program itself, meaning that any immigrants protected after the bill was signed would still be in danger of getting stuck in that in-between status.