The United States has a variety of different humanitarian statuses it offers to hopeful migrants. Below is a general survey of these various statuses and some thoughts on how they could be reformed in the near future by the executive and legislative branches respectively in order to move the US migration system towards a more sensible approach.
Temporary Protected Status
The purpose of temporary protected status (TPS) is to grant a legal status for those who find themselves unable to immediately return to their home countries due to a major natural disaster or ongoing armed conflict there. TPS is extended to all migrants from the designated country residing in the United States during the initial filing period regardless of prior migration status. It grants the ability to work in the United States and is renewable indefinitely so long the migrant’s home country is listed as eligible. Many ‘illegal migrants’ from the Central American countries of Honduras, El Salvador, and Nicaragua actually hold TPS status and thus better referred to as irregular migrants.
There are three chief problems with TPS. The first problem with TPS is that it has no method for its status holders to eventually claim permanent residence if the ‘temporary’ disaster or armed conflict becomes prolonged. The second problem with TPS is that it does not cleanse the migrants in question of any unlawful presence they might have accrued previously. If a migrant is unlawfully present for more than six months but less than a year they are barred from admission into the United States for three years. Unlawful presence longer than a year warrants a ten year bar from admission. As Alex Nowrasteh of the Cato Institute points out, a significant portion of the United States illegal-irregular migrant population could become legalized under existing pathways to citizenship but would have to leave the country to do so and therefore are barred from admission into the country. The three and ten year admission bars are particularly absurd when it comes to TPS as the migrants were granted TPS precisely because it is unsafe for them to return home yet they are asked to do just that if they wish to gain a green card.
One change to the program that the legislature could make is allow TPS holders to apply for a green card if they have held the status for five years regardless of any prior accrued unlawful presence. This change would serve as a safety should the ‘temporary’ natural disaster or armed conflict that afflicted the designated countries end up having longer term consequences than first imagined. The five year wait period for a green card, which is longer than any existing humanitarian status, would serve to discourage abuse of the TPS program.
Whilst the first two problems with TPS must be addressed by the legislature, the third problem can be fixed overnight by the executive branch. As it currently stands the executive branch has wide discretion on which countries to extend TPS to but has traditionally been reluctant to expand it. Listed below are those countries whose nationals are currently designated for TPS eligibility.
Mexico and Columbia, with their ongoing wars against drug cartels and guerillas, should easily qualify but TPS status hasn’t been extended to their nationals. Likewise neither Ukraine nor Venezuela have been included into the list of TPS eligible countries despite the armed conflicts in both countries. It is noteworthy that the US has not designated any American country for TPS eligibility due to armed conflict. Could it be that executive administrations are reluctant to admit the existence of armed conflicts occurring so close by? Regardless, the current and future executive administrations would do well to be more liberal in the designation of TPS eligibility.
A related status to TPS is deferred action. Deferred action grants its holders legal presence but not status which is legally distinct. Those with deferred action may attain work authorization in the United States. Deferred action is renewable in theory but it must be emphasized that it is not a stable status and can be revoked at any time. Deferred action is granted to low priority deportation cases and usually granted on a case by case basis. The largest extension of deferred action was two years ago when the Obama administration announced ‘Deferred Action for Childhood Arrivals’ (DACA) for those illegal immigrants who were brought into the United States as children.
Many of the problems associated with TPS also apply to deferred action. Deferred action offers no pathway to regular migration status and it does not forgive any previous unlawful presence. The executive branch can do little to fix either of these problems and here too we must hope that the legislature rectifies the situation.
What the executive branch can do is change the manner in which deferred action is handled. Take for example the DACA program; to be eligible for the program one must have been thirty or younger on June 15th 2012 when it was first announced. There is no legislative reason for this age cap and little practical reason for the existence of the age cap. The executive branch should remove this age cap.
Some believe that the Obama administration may expand deferred action to cover a larger portion of the illegal alien population in the United States if the legislature fails to take any significant immigration reform before its summer recess. I for one would advise against such action and instead recommend being more liberal in the designation of TPS eligible countries as deferred action makes one a low priority for deportation but a priority nonetheless.
Refugee status may be granted to those outside the United States who can demonstrate on a case-by-case basis that they are in danger in their home countries. The United States refugee program is actually well constructed as it allows refugees the ability to apply for a green card within one year of being admitted and grants them the ability to work immediately upon arrival. Refugees may bring along with them spouses and minor children, and so the program avoids splitting families apart. Refugees have limited access to welfare benefits and therefore have little fiscal impact.
The chief problem with the refugee program lays in the fact that is capped. As shown below, this problem is more a matter of principle than practicality as actual arrivals are usually below the proposed ceiling. This begs the question, why do we need any caps at all if they are rarely met? Let us imagine that an individual is in danger in their home country but the refugee ceiling cap have been met, are we to ask that individual to wait till next year? It is absurd to think that someone in danger can simply wait a year.
Refugees must be admissible to the United States to quality for the status. This means that they may not qualify for the status if they are subject to the three or ten year admission bars.
Asylum is the sister of refugee status and granted under similar guidelines. Asylum may be granted to migrants already in the United States on a case by case basis who fear return to their home countries due to discrimination due to political belief, race, religion, etc. One may apply for a green card a year after being granted asylum.
There are two significant differences for those seeking asylum within the United States as opposed to refugees abroad. Asylees have no quotas, although until 2005 there was previously a cap on the number of asylees who could apply for a green card. The second difference is that asylees do not get work authorization until their application status has been approved or at least for 180 days after they submitted their application. The reasoning behind this latter difference is to avoid abuse of the asylum system from those seeking employment in the immediate future, but one can’t help wonder if making legitimate asylees wait so long for work authorization is a high cost for discouraging such abuse. When reviewing immigration law the legislature should consider making it easier for asylum applicants to pursue work while waiting for their applications to be reviewed.
One additional aspect in which the asylum process differs from other humanitarian aspects of the US immigration system is that it is unclear if those subject to the three and ten year admission bars may apply for asylum. Those who have credible applications for asylum do not accrue unlawful presence in the United States even if their application is ultimately denied. However it is unclear if asylum can be granted for if one has accrued unlawful presence in the past. We know from past actions that one can certainly apply for asylum with prior unlawful presence. In 2013 several individuals who had previously accrued unlawful presence, the “Dream 9” & “Dream 30” respectively, applied for asylum. The applications of several of these individuals were accepted, but none have actually received asylum status so for now it is unclear if the admission bars apply to asylum seekers.
Capped at 10,000 per annum the U visa may be granted to those migrants who are victims of crimes such as abduction, assault, torture, unlawful criminal restraint, and many more that are willing to help law enforcement. The purpose of visa is to encourage cooperation from the migrant community with law enforcement as many migrants are reluctant to interact with government officials. The U visa allows its holders to apply for a green card after three years and the U visa itself is valid for four years and renewable. Throughout its validity U visa holders have work authorization.
On paper the U visa needs little reform. Its cap should be removed, but here too like the refugee program it is more a matter of principle than practicality. If a potential U visa applicant cannot acquire the U visa due to the yearly cap having been met already then they are placed into a waitlist for the following year and giving temporary relief in the form of deferred action. The U Visa could be improved if its cap was removed and if its holders could apply for a green card after a year instead of three, but there is no pressing need for reform of the visa from a legislative perspective. One area in which the legislature could substantially improve on the U visa is by making those with accrued unlawful presence eligible for it; as with most other forms of humanitarian migrant statuses the U visa cannot be attained by those who face the three and ten year admission bars.
The above should not be confused to mean that the U visa cannot or should not be reformed. Rather it is the administration of the U visa that needs reform. In theory the U visa covers a great deal of crimes, but in practice its applicants are those who suffer from the worst of crimes. Other flaws of the U visa is that many migrants are not informed that they are eligible for it, and they are given little aid in applying for it from law enforcement. The current Obama administration could improve on the U visa greatly by leading an informational campaign aimed at migrants and law enforcement alike about the U visa.
The T visa functions essentially the same as the U visa in that it exists to promote cooperation between law enforcement and the migrant community. The difference lays in the fact that the T visa exists exclusively for victims of human trafficking and has a separate cap of 5,000 per year.
T visa holders receive work authorization and are eligible to apply for a green card after three years. The legislature should ideally remove the cap, but once more this is more an issue of principle than practicality as potential T visa applicants are also eligible for the U visa and may acquire deferred action should both visas be capped for the year. What is a more serious issue is that T visa applicants, like many others applicants to humanitarian migrant statuses, are subject to the three and ten year admission bars.
Similarly to the U visa, the current administration must more actively inform both law enforcement and migrant communities about the existence of the T visa. The T visa could use some minor tweaking but is already a great status from a legislative stand point. Its flaw is that several migrants who are eligible for it are not informed about how to attain it or do not receive the aid from law enforcement in filing out the needed paperwork. The U and T visas alike both require extensive support from law enforcement as a perquisite for both is proving that the applicant is willing to, or has, aid the capture of the criminals who wronged them.