As Democrats’ chances of passing major immigration legislation this Congress dwindle, lawmakers and advocates are eyeing another strategy.
Many are ramping up calls on President Joe Biden to use executive action to deliver immigration relief through temporary protected status, a designation that provides legal protections to immigrants fleeing countries in crisis.
The move could provide stability, for the interim, to hundreds of thousands of immigrants — and give the Democrats something to tout in the midterm elections. Immigrants who hold temporary protected status are protected from deportation. They’re eligible to apply for work authorization, and can travel outside the U.S., but do not have a guaranteed path to permanent residency or citizenship.
“In the absence of other Hill action, this would give the immigrant community something that it’s really needed,” said Vanessa Cardenas, deputy director of the advocacy group America’s Voice. “It will also — in light of everything that’s been happening, the fact that we don’t have a path forward on the legislative front — just be a benefit to reengaging the immigrant community and moving forward.”
Democrats had hoped their sweeping plan to legalize millions of immigrants and cut visa backlogs would be permitted in a broad budget reconciliation package, but the Senate parliamentarian rejected three separate attempts to include them. Meanwhile, the package itself is in flux as Democratic leaders seek consensus with a handful of moderates who oppose it.
Included in that plan was a provision to make immigrants with TPS eligible for lawful permanent residency and, eventually, citizenship. That possibility now seems increasingly unlikely.
Congress created the temporary protected status designation as part of the Immigration Act of 1990. TPS grants individuals from countries struck by natural disaster, armed conflict or other “extraordinary and temporary conditions” the ability to stay in the U.S. without fearing deportation.
The nations designated for TPS have varied over the years. Currently, around 400,000 people from 12 countries benefit from the designation, which allows recipients to live in the U.S. for up to 18 months and can be renewed indefinitely.
Lawmakers and advocates say designating and re-designating certain countries for TPS, thus making new groups of immigrants eligible, could deliver some relief to the immigrant community — even if it’s not what they originally envisioned.
It’s famously difficult for lawmakers to reach agreement on a thorny issue like immigration with an election just months away. And immigration policy is also far from top-of-mind for many lawmakers, who are also juggling a Supreme Court nomination, a government funding deadline, and a potential Russian invasion of Ukraine.
The absence of Sen. Ben Ray Luján, D-N.M. — a top Democratic voice on immigration who is recovering from a stroke — further complicates things, since Democrats need all 50 members of their caucus to achieve a narrow Senate majority to accomplish anything legislatively without Republicans on board.
A handful of progressive lawmakers who count immigration reform as a top priority are hesitant to throw in the towel on legislative action. But, increasingly, they’re mulling alternatives.
“We’re looking at developing a list of executive order proposals,” said Rep. Adriano Espaillat, D-N.Y., who previously staked his budget reconciliation vote on the package’s immigration provisions. “It’s a parallel track. We haven’t given up on Build Back Better.”
Last week, the Congressional Hispanic Caucus met with a slew of advocacy groups to discuss the path forward on immigration. Afterward, they signaled openness to using “every tool — legislative and executive — to protect our communities.”
“We’re pushing for affirmative relief for people who’ve been in the country for many years, and who are contributing to this country,” said Kerri Talbot, deputy director of the advocacy group Immigration Hub, one of the organizations at the meeting. “Our major ask is that the administration consider TPS for any country that qualifies for it.”
Lawmakers and advocates are pressing particularly for Central American undocumented immigrants to be eligible for TPS.
In January, dozens of senators urged the White House to re-designate TPS for El Salvador, Honduras and Nicaragua, which would protect immigrants from those nations who previously were not eligible. Honduras, for example, was last designated in 1999 — a re-designation would allow a swath of Honduran immigrants who arrived in the U.S. since then to become eligible for TPS.
They also want a new designation for Guatemala.
“It is our assessment that the severe damage caused by back-to-back hurricanes just over one year ago, combined with extreme drought conditions, and the economic and social crises exacerbated by the COVID-19 pandemic, warrant such an action by the Administration,” the senators wrote in their letter to the Department of Homeland Security.
The Homeland Security secretary, usually in consultation with the State Department and other government offices, decides which nations are deemed eligible for TPS.
The cohort of Democrats, which included Majority Leader Charles E. Schumer, said new designations would be “consistent” with the Biden administration’s promise to address climate migration. They also said the designations would help the administration’s efforts to increase legal migration pathways in an effort to stem illegal border crossings.
“These temporary designations would give the U.S. government more time to partner with governments and civil society in the region to ensure that the return of a large number of individuals to Central America does not create further instability and volatility,” they said.
The Biden administration has already proven willing to take advantage of TPS — a marked contrast from his predecessor, who attempted to end the program altogether.
Last year, Homeland Security Secretary Alejandro Mayorkas added Myanmar and Venezuela to the list of countries eligible for TPS. He also extended current benefits for immigrants from El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, Syria and Yemen.
The administration’s progress on the issue has been complicated by an ongoing lawsuit against the government to stop an effort by President Donald Trump to terminate TPS. Last July, the Biden administration announced it would pursue a settlement with the plaintiffs, and those negotiations are ongoing.
“TPS was one of these things that they could have resolved on Day One, and they didn’t do it,” said Erik Villalobos of the National TPS Alliance. “We’re still waiting to see where this lawsuit is going.”
However, the administration has touted its accomplishments on the issue and signaled that additional TPS moves could be in the pipeline.
“There is work that continues on the TPS front,” said Esther Olavarria, White House Domestic Policy Council deputy director, during a webinar last month. “Other designations are under active consideration.”
Lindsey McPherson contributed to this report.