The 101 on Temporary Protected Status

In the last few months, U.S. Citizenship and Immigration Services (USCIS) has processed some 200,000 Temporary Protected Status (TPS) re-registration applications from Salvadorans whose lives were gravely affected by the two earthquakes that rocked El Salvador in January and February of 2001.[1] In March 2001, then-Attorney General John Ashcroft granted El Salvador Temporary Protected Status under §244(b)(1) of the Immigration and Nationality Act because of the severe disruption in living conditions that accompanied the two quakes.

When a country is designated for TPS, its immigrant citizenry in the United States may continue to reside in the United States for the duration of their home country’s TPS designation. This policy is premised on the notion that it would be inhumane to deport immigrants to their thoroughly devastated home countries. Immigrants with TPS designation receive Employment Authorization Documents (EADs), authorizing them to work legally in the country. A country’s TPS designation is reviewed periodically and extended as the Department of Homeland Security and Department of State see fit. The latest review, conducted over 2010, extended El Salvador’s TPS designation through March 2012. So what does this mean for Salvadoran immigrants with TPS status who have built lives and families in the United States over the past decade? And what will it mean for the hundreds of thousands of Haitians whose own tragic earthquake has prompted our government to grant them TPS?

Any Salvadoran who has enjoyed protection in the States and who has worked here legally via an EAD since 2001 will be forced to return to El Salvador upon expiration of El Salvador’s TPS status, unless they have obtained some new immigration status while registered for TPS (e.g. by marrying a US citizen). Courts have begun to recognize the problems that removal of TPS designation will cause for immigrants who have spent more than a decade making their lives in the United States.  Last March the 2nd Circuit held in De La Cruz v. Holder that deporting a Guatemalan father of an American child could constitute “exceptional and extreme unusual hardship” to his American child because the child’s Salvadoran mother held TPS. [2] The court recognized that once El Salvador lost its TPS designation, the mother would be required to return to El Salvador, leaving unanswered the question of where her American-born child would live.   The eventual end to El Salvador’s TPS designation is sure to be accompanied by similar legal disputes throughout the country.

Haiti was designated a TPS country in January 2010, just six days after a 7.0 magnitude earthquake rocked the island. The Department of Homeland Security estimates that there are 100,000 – 200,000 Haitian nationals or residents who are eligible for TPS, similar to the amount of Salvadorans who currently enjoy TPS designation.  Haiti and El Salvador are similar in many other ways – both are resource-poor countries that suffered high magnitude quakes resulting in a high casualty rate, near-total infrastructure destruction, political chaos, a surge in violent crime, a severe lack of employment opportunities, and a slow process of rebuilding.   If history is any guide, then it’s probable that Haiti, like El Salvador, will be designated a TPS state for more than a decade as well.

Last July, in the absence of comprehensive immigration reform on the part of the Congress, USCIS proposed measures to “promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization”.   One of those measures is to allow TPS designees to apply for a status adjustment after residing in the United States for a certain period of time.  This proposal is a step in the right direction. With very few exceptions, immigrants with TPS designation have been in the United States prior to the event prompting TPS designation; their presence here indicates their desire to establish a home here. Having enjoyed several years with a protected legal status and legal employment, many, if not most, of these immigrants are flourishing and building families and homes here. To break down overnight what has been built up over the course of years is destructive not only to the individual immigrants with TPS, but also to their loved ones, neighborhoods, and local industries. A statute which considers factors such as  the length of time that immigrants have lived in the US, the presence of American family members or spouses, pursuit of higher education, or continuous and gainful employment, when hearing petitions for change of status could mitigate the harm that removal of TPS designation can cause.

Sadly, Salvadorans stand a good chance of losing TPS designation before any significant policy changes occur, but here’s hoping that Haitians will soon be looking at an immigration policy that is realistic and humane.


[1] INTERREL-DAILY 4 3-9-11 USCIS Provides Salvadoran TPS Holders Interim EADs


[2] c, 2010 WL 1068130 (C.A.2);   2010 U.S. App. LEXIS 6028


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