The Promise and Challenge of Humanitarian Protection in the United States: Making Temporary Protected Status Work as a Safe Haven

Schoenholtz, Andrew I | October 1, 2019

The humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried that this temporary program would lead to permanent immigration. To constrain the program, Congress required a supermajority of the Senate for any nationality to be granted lawful permanent resident status as a group, which would place such individuals on a path to citizenship. Congress has never granted group status in this way to any TPS nationality. Congress also worried that even temporary legal status for conflict refugees and other eligible humanitarian groups would act as a magnet and attract large movements to the United States. For that reason, Congress required that eligible individuals had to already be in the United States when the DHS Secretary designated their nationality for TPS. Accordingly, Congress designed TPS in a way that did not protect ongoing arrivals fleeing a humanitarian emergency. Congress should address both of these shortcomings. This article explains why and how it should do so. As DHS data shows, TPS has not acted as a magnet—even after DHS has repeatedly opened up temporary protection for some new arrivals through twenty re-designations of eleven nationalities. The data shows that it is not the policy that attracts people to the United States, but rather a fear of death or very serious harm that principally motivates flight from conflict and significant violence. Accordingly, Congress can provide the same type of temporary protection to new arrivals fleeing an ongoing crisis that many nations do, including the United Kingdom and Canada, without worrying that TPS itself will act as a magnet. Moreover, Congress did not know in 1990 that limiting access to lawful permanent resident status when a crisis does not end would effectively lead to long-term TPS programs. Over time, people put down strong roots in their communities through work, family, education, and religious institutions. Given this limitation in the current law, Congress should adopt ways to keep TPS temporary both by facilitating return when conflict ends in a reasonable period of time and by enabling those who have become part of their American communities to be recognized as such when violence and instability is prolonged. TPS policies have not resulted in a significant magnet effect after twenty-six designations and one hundred twenty-two separate extensions covering twenty-two nationalities. Accordingly, Congress can act more generously by providing a temporary measure of protection to all those who flee serious harm or devastation and by transitioning temporary protection to a permanent status for individuals who cannot return home safely after a reasonable period of time. By enacting these reforms, lawmakers will enable TPS to achieve its full potential as a robust humanitarian policy.