With ‘Dreamers’ out, bring aliens under temporary status in

The Temporary Protected Status program (TPS) provides refuge in the United States to more than 300,000 aliens from a total of 13 countries: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and Yemen. 

They are supposed to leave when it is safe for them to return to their own countries, but it can take many years for conditions in their countries to improve. The need for TPS can last for decades.

It does not include a path to permanent resident status, but should aliens who have lived in the United States for decades be required to leave when their TPS is terminated?

Rep. Zoe Lofgren (D-Calif.) says that at some point they have been here so long that they should be allowed to remain permanently: “There should be some rational way to transition people who have been here for a long time … who because of the length of their stay have basically become valued members of our community.”

What is TPS?

TPS provides a safe haven for aliens who would face one of the following conditions if they were to return to their own countries:

• Ongoing armed conflict (such as a civil war);
• An environmental disaster (such as an earthquake, a hurricane, or an epidemic); or
• Other extraordinary and temporary conditions.

To be eligible, an alien must have been physically present in the United States continuously since the effective date of his country’s most recent TPS designation, and he must be admissible as an immigrant. Waivers are available, but some grounds of inadmissibility cannot be waived, including those relating to criminal convictions and the persecution of others.

{mosads}TPS is granted for periods of between six and 18 months, but extensions are available if the conditions in the alien’s country do not improve. There is no limit to how many extensions can be granted.

Aliens who have TPS are not removable from the United States; they can obtain employment authorization; and they may be granted travel authorization.

When TPS is terminated, they revert back to whatever immigration status they had when they were granted TPS. If they were here unlawfully, they are subject to removal when their TPS is terminated.

According to Mark Krikorian, the Executive Director of the Center for Immigration Studies, TPS is not temporary. “No TPS grant to a large group of people has ever been allowed to end.”

The Trump administration seems to be taking a stricter view of TPS. When then DHS Secretary John F. Kelly announced an extension of Haiti’s TPS designation, he limited the extension to only six months, and he warned Haitian TPS recipients that there might not be another extension.

He advised “Haitian TPS recipients who do not have another immigration status to use the time before Jan. 22, 2018 to prepare for and arrange their departure from the United States — including proactively seeking travel documentation — or to apply for other immigration benefits for which they may be eligible.”

An alien is free to apply for other types of immigration status while he has TPS.

So, should congress make permanent resident status available to TPS aliens when conditions in their countries keep them here an exceptionally long time?

I agree with Lofgren that at some point, TPS aliens have been living here so long that it no longer makes sense to send them back to their own countries.

The best solution would be to change the TPS provisions to make some form of permanent status available when aliens are forced to remain for exceptionally long times because conditions in their countries do not improve, but that might not be possible.

One of the TPS provisions imposes a limitation on consideration in the Senate of legislation to adjust the status of aliens who have TPS. It provides that it shall not be in order in the Senate to consider any bill or amendment that provides for adjustment to lawful temporary or permanent resident status for TPS aliens, or has the effect of amending the TPS provisions in any other way. 

This restriction can be waived or suspended with an affirmative vote from three-fifths of the senators, which is known as a “supermajority vote.”

But there is an alternative that would not require changing the TPS provisions.

The Registry legalization program, which was established in 1929, makes lawful permanent resident status available to qualified aliens who entered the United States before January 1, 1972; have resided in the United States continuously since such entry; and have good moral character.

An update of the registry cutoff point is long overdue. It has not been changed since it was set at 1972, by the Immigration Reform and Control Act of 1986 (IRCA).

The change would apply to all undocumented aliens who can meet the eligibility requirements.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.