What is TPS? Key facts about Temporary Protected Status
Who gets it, and why? Is it a path to citizenship? Can it be revoked?
What is Temporary Protected Status, who gets it, and why?
Temporary Protected Status (TPS), defined in 8 U.S. Code §1254(a)(1), allows an alien — who does not necessarily have legal permission to be in the United States — to be protected against deportation for a specified period of time and authorizes him or her to engage in employment in the United States. TPS also allows beneficiaries to obtain authorization to travel outside the U.S. and return.
According to the Pew Research Center, as of March 31, 2024, about 1.2 million aliens in the U.S. are either eligible for or receiving Temporary Protected Status. “Immigrants with TPS live in all 50 states, the District of Columbia and U.S. territories,” with the largest numbers of beneficiaries living in Florida, Texas, California and New York.
The grounds for the Secretary of Homeland Security to designate a foreign state’s nationals eligible for TPS are:
“ongoing armed conflict” such that returning nationals “would pose a serious threat to their personal safety” [8 USC §1254 (b)(1)(A)]; OR
“an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,” where the foreign state is “unable, temporarily, to handle adequately the return” of its nationals from the U.S. and the foreign state has requested TPS for its nationals [8 USC §1254 (b)(1)(B)]; OR
“extraordinary and temporary conditions” in the foreign state prevent aliens who are nationals of the state from returning to the state in safety (unless the Secretary of Homeland Security finds that permitting the aliens to remain in the U.S. “is contrary to the national interests of the United States”) [8 USC §1254 (b)(1)(C)].
When the Secretary of Homeland Security designates a country’s nationals as eligible for TPS, the eligible aliens must apply for TPS in order to receive the benefit.
Eligibility Requirements
In order to be eligible to receive TPS, an alien must be a national of a designated country and be “admissible as an immigrant.” The rules and exceptions for “admissibility” are complex, but in general a felony conviction or two misdemeanor convictions for crimes committed in the United States, or “reasonable grounds for regarding the alien as a danger to the security of the United States,” will make an alien ineligible. An alien is also ineligible for TPS if he or she “was firmly resettled in another country prior to arriving in the United States” [see 8 USC §1254(c)(2)(B)(ii) and §1158(b)(2)(A)].
The individual seeking TPS must file for status during a specified registration period, and he or she must have been continuously physically present within the U.S. since a designated date.
Countries Currently Designated for TPS
Currently sixteen countries’ nationals have been designated for TPS. They are Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela and Yemen.
[NOTE: On October 17, 2024, DHS announced it would offer TPS to the approximately 11,000 Lebanese nationals currently in the United States.]
Does TPS confer legal immigration status?
No, TPS does not confer legal status, nor does it offer a pathway to citizenship. However, in practice, the time limit for TPS is routinely renewed, allowing opportunities for recipients of the TPS benefit to apply for legal status.
On its face, the TPS statute is only a temporary reprieve from detention and removal on the basis of one’s immigration status. As Mark Krikorian, Executive Director of the Center for Immigration Studies, explains, TPS is a “nominally time-limited status granted to groups of illegal aliens, or visitors here on visas about to expire, because of natural disaster or civil unrest back home. They don’t qualify as real refugees … but we’re also unwilling to deport them to an unstable situation.”
In practice, however, according to Krikorian, “most grants of TPS are renewed year after year until everyone gets a green card.”
Termination of Temporary Protected Status
Although there is a review process for an individual to appeal the denial of the benefit, there is no judicial review for the Secretary’s decisions “with respect to the designation, or termination or extension of a designation, of a foreign state” [8 USC §1254(b)(5)(A)].
The Secretary may terminate a country’s TPS designation at any time, without judicial review, but challenges have been launched alleging discriminatory intent implicating the Administrative Procedure Act (APA) and the Equal Protection Clause. Actions like these have resulted in injunctions or stays that have temporarily paused the termination of TPS.
For example, in 2018, the Trump administration ended TPS for more than 300,000 people from Sudan, Nicaragua, Haiti and El Salvador. TPS beneficiaries from the affected countries, represented by the ACLU, sued in federal court in California and won a temporary injunction. On appeal, a three-judge panel of the 9th Circuit Court of Appeals in Ramos v. Wolf (2020) ruled against the plaintiffs, holding that Trump’s decisions to phase out the protections were not reviewable under the APA, that the plaintiffs were unlikely to succeed on the merits of their Equal Protection claim, and that the lower court abused its discretion in issuing the preliminary injunction.
But there was no need for the ACLU and the plaintiffs to appeal. A few months after the 9th Circuit issued its opinion, a new president was in office. During his 2020 presidential campaign, Joe Biden had called Trump’s TPS decisions “politically motivated” and had promised to reverse them if elected.
Biden made good on his promises. On January 21, 2021, the day after his inauguration, Biden issued a moratorium on deportations (among numerous other executive actions related to immigration and border security). CBS News reported: “Progressive and immigrant rights groups who pushed Mr. Biden to adopt the deportations moratorium as a campaign pledge during the Democratic presidential primary have applauded his administration for following through on it.”
Biden’s DHS Secretary created a new designation for TPS for Sudan in April 2022, and reinstated TPS for El Salvador, Honduras, Nepal and Nicaragua in June 2023.
Trump’s recission of TPS for people from Haiti was addressed in a separate case, Saget v. Trump (2019), which was filed in federal court in New York and which raised arguments similar to those in Ramos. In Saget, as in Ramos, the lower court issued a temporary injunction that functioned to allow the affected TPS beneficiaries to remain in the country until the next presidential administration restored TPS for eligible Haitians.