By Mitchell Harrison, J.D. Class of 2023
One of my cases from this semester involved a fairly novel issue for the Clinic: my clients’ Temporary Protected Status (TPS) expired soon after their TPS approval date. By “soon” I mean “within the week.” To me, this seemed like an unusual setup for a program, where the government would agree that someone was qualified for the protection, but then provide that protection for only a few days. Initially, I assumed that the term of TPS began when the clients applied for it, and it just took too long for them to be approved to enjoy it. I was surprised to learn that this was not the case.
For most programs, protections, and requirements under U.S. immigration laws, such as the Immigration & Nationality Act, the focus is on the individual. An asylum seeker needs to demonstrate why they personally have a fear of returning to their home country.1 Those fears can range from the Taliban assaulting someone on their way home from a religious service to a journalist who received death threats based on their work. When a person receives a temporary visa, their visa will expire a certain number of months after it was first issued to them.2 This sort of setup represents the bulk of actions under U.S. immigration law. By contrast, TPS focuses on countries, rather than individuals.3
How does TPS work? The Secretary of Homeland Security creates a list of countries that, based on current conditions within that country, qualify for the program.4 The Secretary will then designate that country for TPS status for a set amount of time.5 The conditions preceding such a designation can vary from armed conflict to recent natural disasters,6 but the main crux of TPS is that it could be unsafe for citizens from those countries to return there.7 It does not matter what brought the citizen to the US in the first place; they could be students or workers or visitors, they just need to be from a designated country.8 When a country is initially designated for TPS, the Secretary sets the length of time for which TPS is valid, which can be between 6 to 18 months.9 After those 6-18 months, the Secretary must then re-designate a country for TPS so that people in the U.S. with TPS can renew their status.10 In my clients’ case, they applied for TPS only for USCIS to consider their case for nearly the entire 18 months that the Secretary designated for their country. They were approved in the final week of the 18 months, and when that week passed, their protection ended. In other words, when the TPS designation for a country ends, everyone that has TPS due to their affiliation with that country loses it; it doesn’t matter when they were approved or if the Secretary renews TPS for that country. My clients just happened to receive their approval mere days before the window closed. They can reapply, however, since the Secretary did in fact renew the TPS period for their home country.
I was initially skeptical about the efficiency of TPS, which was mostly due to the unfortunate timing in my clients’ case. Do not get me wrong, I am glad that TPS is an option and believe that it serves a noble goal in preventing people from being forced back into dangerous situations. It just seemed strange that my clients were required to go through the entire (costly!) application process only be protected for a week. After some reflection on it, however, the time window structure does make a certain amount of logical sense given the purpose of the program. TPS is meant to provide some respite for citizens of countries facing particularly difficult circumstances. Given that those circumstances provide the entire basis for the protection, it does make sense to reevaluate the circumstances in a country periodically to take the most recent information about the country’s circumstances into account. I also genuinely appreciate that TPS requires much less onerous proof from its applicants: TPS applicants just need to show that they are in fact from one of the countries on the list, that they have continuously resided in the US since a particular date (based on their nation of origin), and that they have been continuously physically present since the time that their country was most recently designated.11 They also cannot have committed a felony, nor can they be found to be inadmissible or barred from asylum based on criminal or security grounds.12 Combined, this level of proof and the periodic reassessments seem to fit the purpose of the program well.
That said, I still think that there could be room for improvement. It seems administratively wasteful to make every TPS recipient reapply every six to eighteen months whenever the window is renewed. DHS waives part of the application fee, which helps, and maybe there is some streamlining on the back end for repeat applicants, but it still does not seem particularly necessary. If the Secretary re-designates a country as eligible for TPS, the status should also renew automatically for the recipients as well. Maybe there could be an opt-out feature for recipients who have acquired a change in status by some other means, or for those who simply do not want or need the status. I just don’t particularly see the need for recipients – who have already shown that they come from a country on the list – to have to do so again. Additionally, if the Secretary sees fit to remove a country from the list, I don’t think that the TPS should expire immediately. Some sort of grace period (of perhaps a month) would feel more humane than abruptly cutting off protection for thousands of people who relied on it up until that point. This would be an additional administrative burden, but I think it would be worth the effort.