Milton Friedman once wrote “Nothing is so permanent as a temporary government program.” While evidence of this truism abounds, one of the greatest examples is Temporary Protected Status (TPS). The Biden Administration just announced a massive expansion of TPS for Venezuela that the government estimates extends protection from removal and employment authorization documents (EADs) to 472,000 additional aliens present in the country. That would bring the total of Venezuela nationals with TPS to approximately 700,000. This will obviously encourage more migration from Venezuela, but also this points to the future of the Biden Administration’s immigration policies. Look for more TPS for more countries and escalating migration as aliens seek the benefit.
TPS has an advantage most other efforts by the Biden Administration lack, as it was created by Congress. The law allows the government to designate countries or parts of countries for TPS in instances where it would be unsafe to remove aliens to that country for reasons of war, natural disaster, or other extreme and temporary circumstances in the country. There is nothing wrong with this law, in theory, because it is temporary in nature. Both the circumstances warranting the protection and the protection itself are, by law, temporary in nature.
However, we know that what counts as ‘temporary’ is in the eye of the beholder. Especially in immigration law, the government’s idea of temporary is permanence. For example, El Salvador has had TPS status for 22 years. Honduras and Nicaragua are coming up on their 25th anniversary of TPS status. Haiti has been in TPS for over a decade. This is as temporary as inflation has been transitory or the border crisis was seasonal.
One of the key facts about TPS is that the government does not want to remove aliens to countries in times of woe. TPS protects that alien from removal proceedings because the government cannot send them to disaster areas. However, curiously, aliens are nevertheless removed to TPS countries while the country is in TPS status. Working with statistics I can find, in FY08 and FY09 over 40,000 nationals from El Salvador were removed while the country was TPS designated. So a country designated by the government as so bad no alien could be safely removed there simultaneously saw 40K+ aliens removed there.
It isn’t just El Salvador, either. Approximately 57,000 nationals from Honduras were removed in the same time frame with the same TPS designation. In FY18 and FY19, over 20,000 nationals from El Salvador were removed along with approximately 70,000 nationals from Honduras. Other TPS countries similarly have annual removals while maintaining perpetual designations that declare the countries unsafe for removals.
And that isn’t the only curious thing about TPS designations. Even though the government is officially designating these countries as unsafe for removals, they are simultaneously also issuing temporary visas to nationals of these countries. So, we are issuing temporary travel and employment visas in the thousands to nationals of countries designated for TPS. These visas have, by law, mandatory dates for departure from the United States. What’s more, aliens can (and do) visit the United States from TPS countries and then safely return home all the time. So even though the government claims a country is unsafe for removals or returns, they are removing aliens to those countries regularly and issuing temporary visas to nationals from those countries that require them to depart to that country by a certain date.
Please do not be alarmed by your confusion. The government’s contradictory use of TPS is the problem. If the government was serious about their TPS designations, then there would be no removals to that country nor would there be temporary visas issued to nationals of that country. Instead, TPS has been used as a geopolitical tool along with our immigration system as a whole. The Biden Administration has bragged about expanding H-2A and H-2B opportunities for countries that they also designate as TPS countries. How does that make sense? It does not… except as a diplomatic tool.
These are just the inherent policy contradictions of TPS abuse by the government which span administrations back to the times of President Clinton. There are kids in college today that are not as old as some ‘temporary’ protected status designations. As the Biden Administration’s illegal actions erode under judicial scrutiny, they are likely to turn more to using TPS as their preferred option for permitting illegal immigration into the United States.
The only hope is for Congress to reform TPS. For one thing, Congress needs to take the power to designate and extend TPS designations away from the executive. TPS clearly becomes an autopilot decision automatically extended in perpetuity by bureaucrats. Congress should hold votes to determine TPS designations. The implications for Americans are too high to have the power in the hands of unelected officials. TPS protects aliens from removal and grants employment authorization, and those are powers that should be in the hands of Congress, alone. TPS also currently protects both legal and illegal immigrants from designated countries. This encourages illegal immigration from TPS countries and should be stopped. At the very least, there should be no employment authorization for aliens from TPS countries unless they would otherwise qualify under our law. Otherwise you encourage immigration from TPS designated countries.
It also goes without saying that the government should not be issuing temporary visas to nationals from countries while they are designated under TPS. If the country is so unsafe that it warrants a TPS designation, then how can we issue a visa that requires the departure of aliens to that unsafe country? Further, if aliens are routinely removed and also routinely travel to and from the United States, then the country is by definition not unsafe for removals and returns.
The Biden Administration has already widely expanded the abuse of the TPS program. This extension and redesignation of TPS for Venezuela is really stretching the program to the limit. Part of this is designed to quickly grant employment authorization. They have been clear about that. Clearly it is not designed to protect the aliens from removal because the Biden Administration has exempted most aliens from removal as a matter of policy. As word spreads around the world of the TPS strategy, we can expect the numbers to grow. If you get to America, you won’t be removed and you’ll quickly be authorized to work. Congress must object.
JARED CULVER is a Legal Analyst for NumbersUSA
