Temporary’ Protected Status: The Biggest Misnomer in Immigration

As U.S. Citizenship and Immigration Services (USCIS) explains, under section 244 of the Immigration and Nationality Act (INA):

The Secretary of Homeland Security may designate a foreign country for [temporary protected status (TPS)] due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.

While this form of protection is referred to as “temporary”, in reality, certain countries have been designated for TPS for almost than 20 years, and in one case, more than 26 years.

As my colleague Mark Krikorian explained in 2016:

Congress in 1990 created [TPS] in an attempt to hem in unilateral executive actions on immigration. The law created a framework for presidents to let illegal aliens from a country stay here for a limited period of time if there was a natural disaster or civil violence back home that made the country “unable, temporarily, to adequately handle the return of its nationals.” The point was to prevent presidential freelancing.

Technically, the INA limits the secretary’s ability to designate a country for TPS. Specifically, she may designate a country for TPS only due to “[o]ngoing armed conflict (such as civil war); an environmental disaster (such as earthquake or hurricane), or an epidemic or other extraordinary and temporary conditions.”

By law, aliens granted TPS are eligible for employment authorization, may apply for travel authorization, and may not be removed from the United States, so long as TPS for that country is in effect. An alien granted TPS may not be detained “on the basis of the alien’s immigration status”.

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