DHS Extends Temporary Protected Status, Work Authorization to 472,000 Venezuelans
FAIR Take | September 2023
Last Wednesday, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas extended and “re-designated” the country of Venezuela for Temporary Protected Status (TPS). The announcement will make approximately 472,000 Venezuelans eligible for TPS benefits, including protection from deportation and work permits.
Temporary Protected Status was created in the Immigration Act of 1990. In general, the federal government may grant TPS to nationals of a foreign state based on: (1) armed conflict; (2) environmental disaster; or (3) extraordinary and temporary conditions in their home countries. Except for armed conflict, the statute also requires that the conditions in the foreign country be of a temporary nature. But there are even further restrictions. To grant TPS, the government must determine that:
- There is an ongoing armed conflict within a foreign state and, due to such conflict, the return of nationals to that state would pose a serious threat to their personal safety;
- There has been an earthquake, flood, drought, epidemic, or other environmental disaster resulting in a substantial, but temporary, disruption of living conditions; the foreign state is unable, temporarily, to handle adequately the return of its nationals; and the foreign state officially has requested designation under this subparagraph; or
- There exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.
The Biden Administration originally granted TPS to Venezuelans on March 9, 2021. In the official notice, Secretary Mayokas pointed to a political and economic crisis in Venezuela that had been underway since at least 2014. Nowhere in the notice did Mayorkas describe how these conditions were extraordinary in comparison to other nations across the globe that suffer from political and economic strife. Moreover, and equally important, even if these conditions were considered “extraordinary,” there is no explanation of how these conditions are temporary. Secretary Mayorkas merely declared: “I have determined, after consultation with the appropriate U.S. Government agencies, the statutory conditions supporting Venezuela’s designation for TPS on the basis of extraordinary and temporary conditions are met.”
The original designation of TPS for Venezuela shielded over 242,000 Venezuelans from deportation and granted them work authorization. Eighteen months later, in September 2022, the Biden Administration extended TPS for Venezuelans for another 18 months, again, with no explanation of how these conditions were temporary. The notice describes the difficulties in Venezuela but simply states that “Venezuela remains in a humanitarian emergency due to economic and political crises,” and “Venezuela continues to be under a humanitarian emergency.” This extension of TPS is scheduled to end in March 2024.
With these TPS protections in place until 2024, one might be confused as to why the Biden Administration is again granting TPS to Venezuelans. The answer is that the President did not act last week to extend TPS to the existing number of Venezuelans already protected by TPS. Instead, the Administration “re-designated” Venezuela for TPS. And, each time a country is designated, the nationals of that country physically present and living in the U.S. are shielded, often automatically, from deportation. This means that the hundreds of thousands of Venezuelans who illegally entered the U.S. after the first declaration of TPS – a stunning 472,000 – will now also be shielded from deportation and receive work permits.
The notion of “re-designating” a country for TPS has no basis in law (INA Section 244). Indeed, the statute governing TPS only discusses designations, extensions, and terminations. This is logical because the basis for granting temporary protected status is supposed to be temporary in nature. The notion that the government could, without statutory authority, “re-designate” a country by simply using the original emergency – for the purpose of giving work authorization and protection from deportation to people who were not in the U.S. at the time of the first designation – is outrageous.
Unfortunately, the Biden Administration’s granting of TPS, coupled with its refusal to enforce any immigration laws, has only encouraged more Venezuelans to illegally cross into the U.S. The month before the original designation, February 2021, only 1,085 Venezuelans were encountered illegally trying to cross into the U.S. Since then, the number has skyrocketed to unfathomable numbers: 37,912 Venezuelans were encountered illegally crossing our borders just last month (August 2023).
Even though granting TPS has encouraged more illegal immigration by Venezuelans, the open-borders advocates have been urging the Biden Administration to re-designate Venezuela for TPS. In a letter sent to the Biden Administration just last week, 103 House Democrats urged President Biden to expand the use of TPS. And in a press conference last Friday, Representatives Alexandria Ocasio-Cortes and Jerry Nadler urged the Administration to re-designate Venezuela for TPS.
Sadly, the widespread support from open-borders advocates for the re-designation of Venezuela has nothing to do with the conditions in Venezuela; nor is it based on some sort of fear that the Biden Administration will deport anyone. The reason for re-designating TPS to Venezuelans is to automatically give work permits to the hundreds of thousands of Venezuelans who have illegally crossed the southern border after the original designation. Indeed, after the Biden Administration made the announcement last week, New York Governor Kathy Hochul was full of praise. “I’m grateful the federal government has acted so speedily to grant one of our top priorities: providing Temporary Protected Status to Venezuelan asylum seekers and migrants who have already arrived in this country.”
Similarly, the day after DHS re-designated Venezuela for TPS, Mayorkas “re-designated” and extended TPS protections for nationals of Afghanistan. Together, the two decisions would make roughly 500,000 additional foreign nationals eligible for TPS benefits, including protection from deportation and work permits.
The re-designation of TPS to Afghanistan was, according to the official notice, due to ongoing armed conflict and extraordinary and temporary conditions. For Afghanistan nationals, the decision would extend TPS for 18 months, until May 20, 2025, for those residing in the United States before September 20, 2023. Afghanistan nationals who were granted parole under Operation Allies Welcome would also be eligible to apply for TPS benefits. There are 3,100 Afghanistan nationals who would be afforded renewed protections under the TPS extension, while the re-designation would make 14,600 additional Afghan nationals eligible to apply for TPS.
As evidenced by Venezuela and Afghanistan, the abuse of the TPS statute has been a problem for years. Currently, there are 16 countries with TPS designations, with roughly 610,630 foreign nationals in the United States covered. Many of the countries currently designated with TPS were granted the initial designation decades ago. For instance, Nicaragua and Honduras were initially granted TPS status in 1998 due to a hurricane, and El Salvador was designated in 2001 following two earthquakes. Given that the protections have lasted about 25 years, the program has proven anything but “temporary.”
In addition, Ukraine was granted a TPS extension and re-designation in August 2023, and El Salvador, Honduras, Nepal, and Nicaragua extensions and re-designations in June 2023. Individuals with TPS are settled across the country, as depicted in the map below from the Congressional Research Service:
The TPS re-designation decisions by Secretary Mayorkas are simply part of the Biden Administration’s open-border scheme, encouraging and facilitating the flow of illegal aliens into the country and granting them protection from removal. Continued use of TPS only creates fresh incentives for people to flock to our borders. There is nothing temporary about TPS, and these designations call into question whether Congress intended for one Secretary to have broad power to allow hundreds of thousands of people to continue to remain in the country and work while doing so.