Tweaking immigration law with temporary protected status

In 2022, more than 6.8 million nonimmigrant visas were issued at American embassies and consulates worldwide, two-thirds of them for temporary visitors for business (B1) and/or pleasure (B2). DHS recorded 97 million admissions of nonimmigrants that year, 87% of them B1/B2. Altogether, there are 83 categories of nonimmigrant visas, ranging from diplomats to students to investors to workers of various sorts.

Almost all of them have one thing in common—their visit to the United States will be time-limited. They must satisfy the consular officer at the time of visa application and the immigration officer at the point of entry that their visit is temporary in nature and that they have a home to return to abroad. The law [Section 214(b) of the Immigration and Nationality Act (8 CFR 1184(b))] requires that every alien, with certain exceptions, must be presumed to be an immigrant unless he or she can meet this threshold.

Sometimes, things go wrong, and we have laws to cover that as well. 8 USC 1254a provides for the granting of temporary protected status (TPS) in cases where it is not feasible for people to go home. Situations such as a war breaking out so that circumstances for safe return do not exist. Events that temporarily disrupt living conditions like earthquake, flood, disease outbreak, environmental disaster, or a failing state. In these cases, travelers are allowed to remain in the United States and to work, until TPS is lifted. The duration of this status ranges from six to eighteen months.

Those situations also mean that illegal aliens—those who entered without authorization as well as those who overstayed their authorized admission time—will not be sent back home in most cases. This can be galling, but it’s the right thing to do. My previous article addressed this concept.

Image: Customs and passport control at the Miami airport in 2005 (edited) by Cayetano. CC BY 2.0.

However, the law is lacking one thing—a degree of common sense. Under TPS, the Attorney General designates a foreign state as having extraordinary and temporary conditions that prevent its citizens from returning home safely. How, then, can nonimmigrant visas be issued to nationals of that country or aliens from there temporarily admitted to the US without violating the requirements of INA 214(b)? They can’t.

Currently, there are 16 countries designated under TPS with nearly 700,000 travelers here. They are Afghanistan, Burma, Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen. The Congressional Research Service recently published an excellent report on TPS and Deferred Enforced Departure that gives the history of the program and the status of each of these countries.

Venezuela, for example, was designated for TPS by the Biden administration on March 8, 2021. Our government thus acknowledged that it was unsafe for Venezuelans in the US to go home. Yet, in 2022, our embassy in Caracas issued 32,268 nonimmigrant visas, 84% of them to temporary visitors for business or pleasure. DHS admitted 216,427 nonimmigrant Venezuelans, 82% as B1/B2 the same year.

Congress needs to make sense of this law. Once TPS is granted, no more nonimmigrant visas should be issued, and no more temporary admissions to the United States should be granted, except for diplomats, fiancés of US citizens, and a smattering of others.

Temporary Protected Status is for aliens already in the United States. The law allows for extensions of TPS for those registered if conditions do not improve. The Biden administration, however, has been redesignating countries in order to scoop into the program all those who have arrived since TPS was granted, including the illegal border crossers. There is no provision for redesignation for original conditions in the law. This needs to be clarified to put a stop to this. Otherwise, TPS becomes a migration magnet, just as Biden has determined it should be.

Those under TPS are allowed to travel abroad and return to the US. The law needs to be tightened up to make it clear that travel abroad to their home country will result in the loss of status and an inability to re-enter the US. Just a few tweaks are needed to bring common sense to this humane law.

Anony Mee is the nom de blog of a retired public servant.