DAVID BIER, CATO INSTITUTE
President Trump announced on Saturday that he had a new plan to open government that includes “a three-year extension of temporary protected status or TPS.” But as in the case of DACA—for reasons I explained here—the actual legislation that Senate Majority Leader Mitch McConnell introduced to implement his proposal does not extend TPS. Rather, it ends it as it exists now, and replaces with an entirely different program with much more restrictive criteria.
Temporary protective status, or TPS, is granted to nationals of country where the government feels it could not, at one time or another, send people back to due to a crisis in those countries, such as a war or natural disaster. Cribbing a lot from what I’ve already written about the DACA provisions of this bill, here is a list of the changes to TPS in the bill:
- Ends TPS for 5 of the 9 TPS countries: Under President Trump, the government has terminated TPS for Nepal, Sierre Leone, Liberia, Guinea, Sudan, El Salvador, Haiti, Honduras, and Nicaragua. Yet only the last four nationalities will benefit from this bill at all (p. 1256). To treat this bill as if it reverses Trump’s decisions is incorrect. It maintains the majority of them—notably for Africans who President Trump denigrated in a White House meeting last year.
- TPS recipients will lose their jobs: TPS extensions of work authorization are automatically extended but p. 1271 of this bill requires TPS recipients to apply for an entirely new work authorization (p. 1277), meaning that unless courts protect them, there will be a major gap in work eligibility. This is especially true because the government can take a year to enact this new program, virtually guaranteeing that everyone with TPS right now will lose their jobs.
- TPS recipients must reapply for initial status: When the government extends TPS, renewals of status are free. But this legislation requires a fee to apply to continue in status (p. 1265). Reapplying for initial status also requires that they reprove their eligibility, which is a costly process and often requires hiring an attorney.
- Much higher evidentiary burden: Reapplying will become even more onerous because p. 1256 increases the evidentiary standard to prove eligibility to receive TPS from a “preponderance of the evidence” to “clear and convincing.” The only higher standard of proof in the law is “beyond a reasonable doubt.” People win multi-million judgments based on the preponderance of the evidence standard. Clear and convincing is often used for cases like withdrawing life support. In the immigration context, USCIS explains that preponderance of the evidence is usually the standard—meaning that “even if the director has some doubt as to the truth,” he should approve “if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not.’” Clear and convincing is used rarely for cases like “to rebut the presumption of a prior fraudulent marriage” (i.e. for applicants the government has reason to be suspicious of). TPS recipients proving that they entered before 2011 or that they resided continuously, for example, just became much more difficult under this legislation.
- Massively Increases TPS Application Cost: P. 1243 contains a fine or penalty but rebrands it as a $500 “security fee” to pay for Trump’s “wall.” This is despite the fact that many TPS recipients entered legally and were stranded after hurricanes or earthquakes hit their home countries. This fine comes on top of the normal fees for processing the application, and it essentially increases the cost of the $50 application for TPS status by tenfold. It basically doubles the $495 cost of an extension of TPS work authorization.
- Minimum income requirement: P. 1261 would require that TPS recipients prove—again by clear and convincing evidence—that, unless they are a student, they can maintain an income of at least 125 percent of the poverty level during their time in the United States. TPS now has no such requirement. That means retirees, stay-at-home mothers, disabled people, etc. would not be eligible for TPS anymore.
- Pay back legally-obtained tax credits: In one of the most bizarre provisions, p. 1262 requires TPS applicants to pay to the U.S. Treasury the value of any legally-obtained tax credits that they have received. This could be thousands of dollars that have already been spent. Not only is this provision not in TPS, it is totally unprecedented in immigration law and would massively increase the cost for many applicants, particularly those with children.
- Bars those with pending criminal charges: TPS requires a conviction of a felony or two or more misdemeanors committed in the United States, not a mere charge for any offense at all. Many misdemeanors include minor traffic offenses. But p. 1260 renders anyone with a pending charge ineligible for the new status, even though a conviction for a single misdemeanor wouldn’t make the person ineligible anyway. Given that there’s only a six-month window to apply, this would prevent people from being able to apply at all.
- Bars employment “contrary to the national interest”: TPS applicants would now have to prove—by clear and convincing evidence—that their employment would not be “contrary to the national interest” (p. 1271). This provision is bizarre since the purpose of authorizing their employment is that they need to be able to support themselves, which should be always in the national interest, but under the Trump administration, the government may not see it this way.
- Keeps TPS recipients from getting permanent residence: Illegal immigrants who also entered illegally cannot adjust their status to legal permanent residence even if they are eligible due to (typically) a marriage to a U.S. citizen. They need to register a legal entry first. Tens of thousands of illegal immigrants received legal permanent residence in this manner under DACA, which offers a similar status to TPS. P. 1273 bars this practice by deeming such entries not a legal “admission” for purposes of adjusting status.
- The new status cannot be extended: Unlike TPS, this new status could never be extended by a future administration. All applications must be filed in a 6-month window (p. 1263), and the status would expire after 3 years (p. 1270).
- All illegal immigrants are banned from TPS in the future: P. 1275 would create a permanent change to the TPS program, banning anyone who is not lawfully present in the United States from TPS going forward. In other words, no future administration could ever use TPS to grant legal status to someone in the country illegally, even if deporting them was simply not an option.
Once again, this legislation should not be described as an extension of TPS when, in fact, it guts the program for existing recipients and removes it as an option for many future immigrants as well. This legislation does not follow through on the president’s promise.
David J. Bier is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity. He is an expert on visa reform, border security, and interior enforcement, and his work has been cited in the Washington Post, New York Times, Wall Street Journal, USA Today, Politico, and many other print and online publications. From 2013 to 2015, Mr. Bier drafted immigration legislation as senior policy advisor for Congressman Raúl Labrador, a member and current chairman of the House Judiciary Committee’s Subcommittee on Immigration and Border Security. Previously, he worked as the immigration policy analyst at the Competitive Enterprise Institute and most recently as the director of immigration policy at the Niskanen Center.