Temporary Protected Status after 25 Years: Addressing the Challenge of Long-Term “Temporary” Residents and Strengthening a Centerpiece of US Humanitarian Protection

Abstract

Since 1990, the United States has offered hundreds of thousands of noncitizens who are unable to return to their countries of origin because of war or a natural disaster a vital form of humanitarian protection: temporary protected status (TPS). While a grant of TPS does not place a noncitizen on a path to permanent residence, TPS recipients receive protection against deportation and temporary permission to live and work in the United States. Nearly 25 years after the statutory creation of TPS, however, the use of the program has been the subject of some debate, largely because of concerns over whether TPS grants are truly “temporary.” This paper examines the legal parameters of TPS and traces the program's legislative history, exploring congressional intent behind its creation. While acknowledging that extended designations of TPS are often the result of long-running international crises, the paper argues that extended TPS designations are problematic for two reasons. First, they run contrary to congressional intent, which was to create a temporary safe haven for individuals unable to return home due to emergency situations. Second, continued grants of TPS status effectively lock TPS beneficiaries into a “legal limbo,” rendering them unable to fully integrate into life in the United States. This paper considers several administrative and legislative “fixes” to align the TPS program with the goal of providing temporary protection to certain individuals that do not meet the refugee definition, while also ensuring that long-term immigrants in the United States are fully able to integrate into the fabric of the country. It considers: • Amending the US definition of a “refugee” to enable more would-be TPS beneficiaries to qualify for asylum; • Creating a new form of subsidiary protection for individuals who cannot return home but do not meet the refugee definition; • Permitting TPS holders who have resided in the United States for a certain number of years to adjust to lawful permanent resident (LPR) status; • Easing the ability of TPS holders to take advantage of existing pathways to permanent residence; and • Implementing repatriation programs to assist former TPS holders in returning to their countries of origin. This paper argues for the adoption of two of the above proposals. It asserts that the best way to realign the TPS statutory regime with congressional intent and the United States' tradition of promoting full integration of long-term immigrants is to allow persons who have held TPS status for more than ten years to adjust to LPR status, while implementing a repatriation program for those with shorter-term grants of TPS that have ended.