“Temporary Protected Status” (TPS) is a legal fig leaf invented by Congress in 1990 that allows the secretary of Homeland Security to exempt nationals of a designated country under certain conditions from having to go back there. It hit the headlines because DHS secretary Kristi Noem on February 20 rescinded the Biden administration’s latest extension of TPS for Haitians. In 2024, Alejandro Mayorkas authorized nationals of that country to stay in the United States a further 18 months, until February 2026. Earlier in February, Noem canceled TPS for Venezuelans.
Haitians have enjoyed Temporary Protected Status in the United States for almost 14 years. They’re not the record-holders. Somalis are, having had TPS since 1991. Being president is a more temporary status than being a Somali TPS holder: six presidents have come and gone since Somalis were first given permission to remain “temporarily” in the United States.
TPS is authorized when the situation in a person’s country of origin is so unstable as to endanger people going back there. Legal criteria of dangerous instability can include armed conflict (e.g., a coup where military rule is ongoing or a civil war has broken out), environmental disaster (e.g., an earthquake), an epidemic, or “other extraordinary and temporary conditions.” TPS holders receive permission to work in the United States. They can also travel abroad and come back to America. Under immigration law, people who have a temporary status to remain in the United States usually cannot leave without losing that status. TPS holders can also be granted permission to visit third countries (just not their own) without forfeiting the ability to re-enter the United States and resume TPS protection.
The National Immigration Forum claimed that there were over 863,000 TPS holders in the United States as of early 2024. The Pew Research Center pegged that number at almost 1.2 million. The Biden administration even sought to pass a law to create a “pathway” for certain TPS holders to exchange that status for green cards as permanent residents of the United States.
How does one claim that a program that has let Somalis stay for 34 years, Hondurans for 26, and Salvadorans for 24 is “temporary”? Because the permission is technically not open-ended. Permission to stay is granted in renewable increments of up to 18 months. But, as one can see from these examples, the extensions have kept on coming — e.g., 27 years after the hurricane that was the initial justification for TPS hit Honduras.
President Donald Trump has signaled that de facto automatic extensions will end.
Expect the usual immigration suspects to wail and gnash their teeth over that plan. They will claim that President Trump is “breaking his word” because he promised only to go after illegal aliens, not people “legally” entitled to be here. But, as noted above, TPS is a fig leaf to provide legal cover to aliens who would otherwise not be able to stay or work in the United States as long as they have.
Once the thin veneer of “legal” is pierced, the next argument is usually that it is “inhumane” to return people to countries that are unstable. Yes, there are poverty, disaster, and instability in the world. But it is not the task of the United States to fix every case of poverty, disaster, or instability in the world, nor to provide alternate quasi-permanent domicile for people from those places.
Twenty-seven years should be time enough to do basic recovery from a hurricane. As for civil unrest, Americans have grown weary of “nation building” for other peoples. Those people should have a far greater interest in living in and taking their countries’ fate into their own hands. Is their country a “failed state”? Well, a plausible argument could be made that Haiti has been a failed state since 1804 — i.e., its nominal independence. At what point does that become primarily a Haitian problem?
No doubt President Trump will try to scale back what in practice have been the abuses of TPS. But what one president taketh away, another giveth…in bounty. Somali TPS, for example, has been extended by Democrats and Republicans. That’s why to fix the manipulation of TPS needs more than tough DHS or ICE resolve or even an executive order.
Let’s truly make “Temporary Protected Status” temporary. Right now, a DHS secretary can go on incrementally renewing a country’s TPS ad infinitum. Let’s change that, balancing executive power to react to exigent situations with legislative accountability to keep that response “temporary.”
My proposal: The secretary of DHS should be able to designate TPS for a particular country for up to 18 months (1.5 years). At the end of that time, reviewing conditions on the ground, he should be allowed to make one additional extension, either for six or 12 months — i.e., up to one additional year.
At that point, nationals of that country will have enjoyed up to 2.5 years in “temporary” protected status. Then the decision-making role should shift.
Article I of the Constitution makes Congress the primary policymaking branch of government. Let’s amend the 1990 Act to stipulate that TPS status will expire at the end of 2.5 years unless Congress deliberately extends it for another year. In other words, Congress would have to go on record affirmatively deciding to continue a given country’s TPS. And, like budget appropriations, it would have to do that on an annual basis.
Such a proposal would change TPS from an almost automatic rollover to a guaranteed expiration unless a majority of Congress can be convinced to extend it. That could enhance political accountability. Yes, one can imagine a mega-omnibus that stuffs TPS extensions, like pork-barrel earmarks, into a 1,500-page bill. But December’s experience also showed how the public can force trimming pork fat.
Immigration proponents (i.e., almost all Democrats) will recoil at such a mechanism, but the world of 1991 — when Congress first devised TPS — is long gone. It’s time American law reflected those changed realities.
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