Biden expands immigration tool that doesn’t require Congress
The administration has extended relief to hundreds of thousands of migrants over the past two years, and advocates want to see more
Two years into an administration that faces legislative inaction and numerous legal challenges to its immigration agenda, the Temporary Protected Status program has emerged as a key tool for President Joe Biden.
The program allows immigrants who cannot safely return to their home countries to work legally and avoid deportation for 18-month periods. And it allows Biden to unilaterally designate which countries are eligible, bypassing Congress.
That has enabled Biden’s Department of Homeland Security to deliver immigration relief to hundreds of thousands of people, even as lawmakers fail to advance other immigration policies and Republican-led states use lawsuits to hamper other initiatives, including the Deferred Action for Childhood Arrivals program.
Biden has more than doubled the number of immigrants eligible for TPS, according to an analysis from the Cato Institute. In January 2021, 411,326 people were eligible. That number has since risen to 986,881.
And in 2023 — when a Republican-controlled House is unlikely to pursue any immigration overhaul — advocates and lawmakers want Biden to go even further.
“He has the power and the legal authority to expand TPS,” said José Palma, a TPS recipient from Massachusetts who immigrated from Honduras more than 20 years ago and advocates for broader TPS protections.
“We feel that he should use it as an opportunity to say, ‘While we continue the conversation on finding a permanent solution, at least for people who are here, for people who qualify — we're going to provide TPS.’”
Turnaround from Trump
The TPS program has not always enjoyed support from the White House. Former President Donald Trump attempted to terminate TPS status for roughly 400,000 people, but his efforts were frustrated in court.
“The Trump administration's goal with the TPS program was to mostly shut it down,” said David Bier, associate director of immigration studies at the Cato Institute.
Trump tried to end TPS designations for Sudan, Haiti, El Salvador, Nepal, Honduras and Nicaragua. TPS holders from those countries then sued the government and won temporary relief.
In October of this year, settlement talks between the Biden administration and the immigrant plaintiffs in that case collapsed, but the Biden administration subsequently announced it would preserve TPS for the 300,000 immigrants whose fate had been at risk.
In the past two years, Biden’s DHS has broadened existing TPS designations for Somalia, Syria, South Sudan and Yemen, allowing more recently arrived immigrants to apply.
It has also made new designations for Afghanistan, Ethiopia, Myanmar, Cameroon, Sudan, Ukraine and Venezuela, opening up protection to entirely new categories of immigrants.
TPS has been “an absolutely essential tool, as part of his overall immigration strategy, to make sure he doesn't need to deport people who would be going back to countries in turmoil,” Bier said.
Advocates and progressive lawmakers have spent months urging the Biden administration to use TPS more broadly in the absence of legislative progress on immigration.
Shortly after his inauguration, Biden unveiled a sweeping immigration proposal that would have legalized 11 million undocumented immigrants. In 2021, Democrats tried and failed to include many of those provisions in a party-line budget reconciliation bill, which ran into parliamentary problems and intraparty opposition from a handful of key moderates.
More recently, a narrower bipartisan deal between Sens. Kyrsten Sinema, D-Ariz., and Thom Tillis, R-N.C., did not materialize in time for consideration before the end of the 117th Congress.
And a House bill that would allow TPS recipients a path to citizenship has yet to advance in the Senate.
Biden’s immigration policies have also encountered near-constant legal challenges from Republican-led states. GOP lawsuits in the past two years have blocked his narrowed immigration enforcement priorities and attempts to end the Trump-era "Remain in Mexico" program.
A Trump-appointed judge also ruled against the DACA program, which protects roughly 600,000 undocumented immigrants brought to the U.S. as children. The program has been barred from considering new applicants for more than a year, and its overall fate remains uncertain.
Next Congress, with Republicans poised to control the House, the outlook for immigration legislation is even dimmer. House GOP lawmakers are planning to focus on oversight of the Biden administration’s border policies and investigate Homeland Security Secretary Alejandro Mayorkas for impeachable offenses.
As a result, advocates and progressive lawmakers have spent months urging the Biden administration to use TPS more broadly in the wake of court drama and legislative inaction on immigration.
“It’s something that they can do without congressional approval,” said Sen. Bob Menendez, D-N.J., a longtime proponent of the TPS program.
“They could reauthorize those categories and expand on it,” he said. “So that would be a way of administratively helping a large number of people.”
Menendez and his colleagues have pushed especially for expanded TPS designations for Central American countries. In April, the Congressional Hispanic Caucus asked the Biden administration to designate and redesignate Temporary Protected Status for several Latin American, Central American and Caribbean countries, including Honduras, Guatemala and El Salvador.
That move would grant temporary protections to hundreds of thousands of undocumented immigrants from those countries — including many recent arrivals.
Honduras, for example, was last designated in 1999. A redesignation would allow a vast swath of Honduran immigrants who arrived in the U.S. since then to become eligible for TPS.
Although TPS doesn’t lead to citizenship, Palma said, it provides a key measure of stability for undocumented immigrants who otherwise would live their lives in the shadows.
“TPS, while not the perfect solution, provides many, many opportunities,” he said. Since his TPS application was approved in 2001, he has worked multiple jobs and attended college in Massachusetts. He also obtained a driver’s license so that he can drive his four children to their various activities.
“One of the most important things that sometimes many people don't think about is the tranquility you feel when you go to bed and you know you are protected — that you are not afraid of getting arrested by immigration.”