The Economic and Social Consequences of Stripping Temporary Protected Status

 Scott B. Astrada & Israel Nery

I. Introduction

Temporary Protected Status (TPS) has a decades-long history in the United States. Recently, there has been controversy around the program after announcements by the Trump Administration to end TPS for certain countries. This controversy has been amplified by comments from the Administration that disparage Latin American and developing world countries,[1] while praising European, mainly white, immigrants.[2] The uncertainty of the TPS program for hundreds of thousands of undocumented residents of the United States and their families has far-reaching and detrimental impacts on economic security, family stability, and the economic development of their countries of origin. In this article, we briefly review the legislative history of TPS and the resulting impacts of the uncertainty created by the recent announcements to terminate TPS for certain countries. We end the article with policy proposals that we believe should be implemented to create a just, equitable, and humanitarian resolution to individuals who rely on the TPS program to build a better life for themselves.

II. Temporary Protected Status (TPS): A brief legal and political history

Origins of Temporary Protected Status (TPS): Principle of Non-Refoulment & Extended Voluntary Departure

The United States has historically granted a safe haven to refugees fleeing from persecution abroad, spurred by extreme political and economic unrest. Origins of “Temporary Protected Status” (TPS) derive from the United States being a state party to the 1967 United Nations Protocol Relating to the Status of Refugees (U.N. Protocol).[3] By being a state party to the U.N. Protocol, it agreed to adhere to the principle of “non-refoulement,” which proclaims that the United States will not return any refugee to their native country that faces serious threats to their life or freedom.[4] During the 1980s, Congress considered many bills to create a formal process for temporary protection to comply with the principle of non-refoulement.[5] Prior to 1990, there was no statutory basis for permitting undocumented individuals to remain in the United States aside from requesting asylum.[6] In the 1960s, the executive branch started employing the use of “Extended Voluntary Departure” (EVD) administrative status.[7] EVD was a temporary grant of blanket relief for foreign nationals who were on the cusp of deportation.[8] This status gave the Attorney General prosecutorial discretion not to pursue foreign nationals of certain countries for removal if they were to be found to be living in the United States as undocumented.[9] EVD was proclaimed to be the prerogative of an Attorney General by exercising its power of prosecutorial discretion.[10] Particularly, EVD was used to give foreign nationals experiencing turbulent conditions of their country of origin permission to remain in the United States.

The first set of foreign nationals that benefited under EVD were Cubans fleeing Fidel Castro’s regime.[11] Under EVD, Cubans were allowed to stay within the United States until Congress passed the Cuban Adjustment Act of 1966. In the 1970s, EVD benefited refugees from Indochina fleeing the communist takeover in their native country. EVD also benefitted refugees from Afghanistan, Ethiopia, Poland, and Uganda.[12] EVD was often criticized by immigration activists and journalists[13] because there was no established criteria to designate a country to qualify as EVD, it was merely prosecutorial discretion.[14] Moreover, in light of the escalating civil wars in Central America in the 1980s, EVD received much criticism given the Reagan Administration did not designate El Salvador for EVD.[15] In the midst of ongoing Civil Wars in Central America in the 1990s, there were concerns over the ability of foreign nationals in the United States to safely return to their home country.[16]

TPS Legislative History

In light of the ongoing criticism of EVD, and the ongoing civil wars carrying over into the 1990s, the concept of Temporary Protective Status was subject to debate in Congress. From 1984-1990, the United States approved around 3 percent of the asylum applications it received from immigrants deriving from Guatemala and El Salvador—countries where the United States had been backing anti-communist regimes.[17] Most of the denied applicants, rather than going back to their native country, assumed the status as an undocumented immigrant subjecting themselves to removal proceedings and deportation.[18] Conversely, Nicaraguans immigrating to the United States found their asylum claims met favorably given U.S foreign policy at that time in Nicaragua.[19] With the ongoing battle to overthrow the Sandinista regime at that time, Nicaraguans were approved an average of 30 percent during the 1980s.[20] In light of these statistics, Senator DeConcino cited that the unfavorable odds of asylum being granted to Salvadorians was a reason to enact TPS.[21]

In response to the increasing population of refugees, Congress enacted the Immigration Act of 1990.[22] As part of the comprehensive immigration act, TPS was statutorily established and with El Salvador as the first country under its provision. TPS was passed to (a) “maintain accurate records of Salvadorians in this country while at the same time provide them with a safe haven;”[23] (b) “facilitate the return of Salvadorans when the period of temporary protected status expires;”[24] and (c) establish a statutory framework for the Attorney General to designate other states whose nationals would be eligible for the protection of TPS should their country become unsafe or unable to handle the return of its nationals.[25] Upon the passage of the statute, over half a million undocumented Salvadorians became eligible for this new status. Although the first designation was done by Congress, all subsequent designations were at that time under the discretion of the Attorney General[26] as it saw fit under the statute.

The following year, The Miscellaneous and Technical Immigration Amendments of 1991 added important elements added to TPS.[27] These amendments authorized the extension of TPS designations to non-citizens of the United States that had no nationality (i.e., those who resided in a designated state rather than the nationals of a designated state that the 1990 act originally provided.)[28] Presently, the TPS statute remains largely the same as the original act in 1990 and amendments in 1991.[29]

TPS Designation, Extension, and Termination

Today, the Department of Homeland Security (DHS) decides not only which countries are designated under TPS, but also which countries should have the TPS designation extended and terminated. For a foreign national to qualify for TPS they must be: (a) a national of a state designated for TPS, (b) able to prove continuous, physical presence in the United States since the effective date of the most recent designation of state, (c) able to prove that one has continuously resided in the United States since such date as the Attorney General may designate and has designated, and (d) otherwise admissible as an immigrant, and not ineligible for temporary protected status as defined by paragraph (2)(B) of the same statute. They also must, to the extent, and in the manner which the Attorney General establishes, register for TPS under this section during a registration period of no less than 180 days.[30] Moreover, for someone to qualify for TPS, they must already be residing in the United States upon the designation of their native country.[31] A DHS Secretary may review the conditions of the foreign country to determine whether a TPS designation should be granted.[32] Upon the renewal period, a DHS Secretary can come to a determination that a foreign country still meets TPS designation requirements. Subsequently, a DHS secretary may be able to extend the designated by a period of 6, 12 or 18 months.[33] Conversely, should the DHS Secretary find that the foreign country no longer merits TPS designation, the Secretary must issue a Federal Register notice of termination, and it may not take effect earlier than the 60 days after the notice is posted. [34]

            This determination was made in 2018 by the Trump Administration when it announced that almost 200,000 people from El Salvador, who have been residing in the U.S. for more than a decade, must return to El Salvador.[35] This reversal of immigration policy for El Salvadorans under TPS was announced a few weeks after another announcement that ended TPS for 45,000 Haitians.[36] These actions have had a detrimental impact on the communities who are covered by TPS, and have caused disruption and uncertainty in the lives of individuals, their families, and the economies that rely on TPS.

III. Economic and Social Impacts of Immigration: A Community Analysis

TPS for African and Haitian Communities

The voluntary migration of the black population to the United States has drastically increased over the past twenty years.[37] The black population of voluntary immigrants has grown five times as large since 1980, increasing from 816,000 people in 1980 to over 4 million people in 2016, meaning 10 percent of the United States black population is foreign-born.[38] Although many black immigrants come from Africa, almost half of all black immigrants come from the Caribbean, mainly from Haiti.[39] The economy of Haiti is still in dire conditions and is slowly beginning to recover.[40] The end of TPS would deal a significant blow to the Haitian economy, impacting remittances back to the island that were as high as $1.3 billion in 2015.

Considering the historical context of their home country highlights the devastating impact that will occur by ending TPS for Haitians. Haiti has historically contended with generations of poverty, economic underdevelopment, and political volatility.[42] Although Haiti has made economic and political progress with the billions of dollars in foreign aid it has received, its social stability and democratic institutions remain tenuous.[43] The country is still beset with poverty and reified economic inequality, with almost two thirds of the country’s 10 million people living below the poverty line, and almost 25 percent living in extreme poverty.[44] Additionally, Haiti was ravaged by the largest earthquake in its recorded history in 2010, as well as struck by 2016’s Hurricane Matthew.[45] The effects of both these disasters, especially the damage done by the hurricane, endangered the whole of Haiti’s economic progress and resulted in a humanitarian crisis.[46] The Trump Administration’s FY2018 proposed budget requested $156 million for aid, a 30 percent reduction from FY2017’s request.[47] In November of 2017, the Department of Homeland Security announced it would end TPS for Haiti on July 22nd, 2019, via an 18-month transition period.[48] The uncertainty faced by TPS holders has impacted individuals who have been living in the United States for years and have made permanent and semi-permanent lives for themselves in the U.S.[49] The U.S. Bureau of the Census provides that the American community survey 5-year estimates “that 1 in 5 TPS holders have a citizen child and the top occupations TPS holders hold are nursing, psychiatric and home health aides and also 70% of those under 25 are in school.”[50] The uncertainty of potentially being separated or relocating with their family is one that many cannot bear with. As one Haitian currently benefitting from TPS has stated “it will be challenging to find quality education for [my] 17- and 10-year-old children on the island [Haiti].”[51]

TPS and Central America

As outlined in the above section, ending the TPS program would also have substantial consequences for Central Americans. More than 300,000 people from El Salvador, Honduras and Haiti are covered by the TPS program.[52] These individuals have made their homes in the United States over the past 19 years, raised families, established communities, and impacted a substantial part of the American economy.[53] The roots they have in their communities are especially deep when considering that they collectively have 275,000 U.S. born children.[54]

Central Americans, and especially Salvadorans, have set down substantial roots in this country. One-third of them have mortgages, and many have U.S. born children and significant investments in their communities.[55] Ending the TPS program would not only disrupt individual lives, but also result in foreclosures, decreased sales and property tax revenue, and decrease intangible community contributions.[56] In the labor force, TPS program participants contribute significantly to local and state economics, with more than half reporting higher wage jobs after receiving TPS.[57] One analysis by the Center for American Progress estimates that if TPS workers are removed from the workforce, “the United States would stand to lose $164 in gross domestic product (GDP) over the next ten years.”[58] Furthermore, there would be a $6.9 billion dollar decrease to Social Security and Medicare contributions over the next decade.[59] Lastly, “if current TPS holders could no longer remain employed in their current jobs, employers would suffer $967 million in turn over costs.”[60] On an individual level, when TPS is terminated, many of these individuals can be torn away from their families and sent back to economically unstable countries that could jeopardize their fiscal and personal safety.

"Ending the TPS program would not only disrupt individual lives, but also result in foreclosures, decreased sales and property tax revenue, and decrease intangible community contributions."

The data do not capture the true risk that central Americans face if TPS is terminated. In many cases, an individual’s country of origin is racked with political and social violence, often as a result of longstanding U.S. involvement in foreign policy.[61] Additionally, their countries of origin suffer devastation from natural disasters. For example, after more than two decades from when El Salvador’s peace accords were signed—politically ending the country’s ongoing civil war—the country still faces serious social and economic challenges.[62] The political struggles have been aggravated by escalating civil gang violence resulting in one of the highest homicide rates in the region at a rate of 81.2 per 100,000 in 2016.[63] This violence has been answered by increased violence by the government and has resulted in escalating human rights violations.[64] This political volatility and escalating civil violence have taken a toll on economic investment and suppressed economic growth to 2.4 percent in 2016, the lowest rate in the entire region.[65] The Salvadoran government has expressed apprehension about the Trump Administration’s policy shift and the announcement to end TPS status for El Salvadorans, as it would accelerate the rate of deportation and disrupt the county’s already fledging economic reconstruction.[66]

Another example is Honduras. The country has long been a significant part of U.S foreign policy, serving as a U.S. stronghold to counter the growing Soviet influence in Latin American during the Cold War. It continues to serve as a strategic partner in anti-drug efforts.[67] However, Honduras has still faced political and economic volatility, including a 2009 political coup and ensuing mass migration, which has caused U.S policy makers to refocus on the country’s political and economic conditions.[68] Unfortunately, Honduras continues to be one of the poorest countries in all of Latin America, with a majority of Hondurans living in poverty, plagued by violent crime, and suffering from escalating human rights violations.[69] Despite the Trump Administration’s request of $67.9 million in aid to Honduras in FY2018, the House Appropriations Committee reported out a foreign aid appropriations bill (H.R. 3362) that calls for $81.2 million in bilateral aid.[70]

TPS and its economic impact on Countries of Origin

The TPS program also has a significant impact on the individual’s country of origin. TPS holders routinely send remittances to family members that support daily living, small businesses operations and loan repayment, and play a central part in the overall economic recovery for many of these countries. More than 85 percent of Salvadorans under TPS send money back, amounting to $600 million annually.[71] The Administration’s course of action on TPS for Haitians in particular would define the tone and signal the approach for all TPS holders, as well as the hundreds of thousands of American born children of TPS holders.[72] Many TPS grantees have been in the United States for over 20 years.[73] A report by the Center for Migration Studies finds that the labor force participation “among TPS holder (81-88%) is actually higher than the total U.S. population (63%) and foreign-born population (66%).”[74] TPS holders “work primarily in construction, food services, landscaping, and child care services,[75] and about 11% (around 27,000) TPS holders are self-employed.[76]

The impact on home countries should not be taken lightly. In fact, there is economic research of comparable countries that have found “an increase in economic uncertainty conveys a fall in GDP, investment, and employment, even after accounting for the small open economy nature of Chile.”[77]A study by Cerda and Silva in contrast to bigger and developed economies, smaller countries cannot absorb economic shocks. Even when the aggravating factor diminishes and uncertainty dissipates, long term effects are still present that “range from: 10 to 20 percent for aggregate investment, 2.5 to 5 percent for GDP, and 1.3 to 4.2 for employment.”[78] In essence, countries in Latin America are seriously harmed with the rise of economic uncertainty.[79] Ending TPS and the decades long flow of remittances exacerbates this uncertainty and the potential detrimental impacts.

Additionally, Dietmar Meyer, has found that “remittances have a positive impact on growth and that this impact increases at higher levels of remittances relative to GDP. There is empirical evidence that remittances contribute to economic growth, through their positive impact on consumption, savings, or investment.”[80] World Bank research has also concluded that remittances can reduce economic volatility by stabilizing overall demand for consumer goods and services, as well as providing steady cash flow to government accounts because of the tax collected on the increased purchases.”[81] Additional research has corroborated the positive effects of remittances, having significant positive effects on poverty alleviation, health and education outcomes, and smoothing economic volatility.[82] The research is unequivocal that uncertainty in the flow of remittances would have far reaching repercussions, and the economic uncertainty would be detrimental to the TPS community here in the states and their countries of origin.

IV. Uncertainty and Family Impact

Notwithstanding one’s political affiliation, one of the common areas of agreements is the importance of family in our society. Senator Marco Rubio (R-FL-27) stated when asked about immigration “[t]he family is the most important institution in society.”[83] The Family Research Council has stated that “the strength of any nation is rooted within the walls of its homes….everywhere to strengthen their families in conformity with these time-honored values.”[84] Dr. Pat Fagan, former director of the Family Research Council’s Marriage and Religion Institute has provided that the structure of family has “[p]rofound effects on an area’s economic well-being.”[85] Moreover, Dr. Fagan claims that the biggest challenge facing our nation is solving the problem of broken families.[86] CSH has provided that there are fewer events more traumatic for kids than being removed from their families.[87] Family is unequivocally one of the most important societal pillars in our country today. The current administration’s actions towards TPS run counter to the value of keeping families together, as Representative Yvette Clarke stated “[t]he Temporary Protected Status program was created with bipartisan support to protect human life.”[88] If the rhetoric of family being the most important pillar of our society is true, then immigration hardliners should take solutions that will keep families together into consideration. The consequences of these families being torn apart will have enduring negative repercussions on the lives of these families having to deal with a core family member being absent from their home.

Uncertainty and Economic Impact

Studies by the Pew Research Center found significant negative impacts on the U.S. economy if the bulk of TPS recipients were to lose their legal status. Our country would stand to lose $164 billion from the GDP over the next decade.[89] States such as New York and New Jersey would be hit hard as that would include nearly $2.5 billion in annual GDP.[90] The impact is most ubiquitous at the local level. Suffolk County has an estimated 1,534 TPS recipients, which includes thousands of homeowners and people with mortgages. The effect of these individuals losing their legal status would be catastrophic, as Theresa Ward, Suffolk County Commissioner of Economic Development and Planning, stated: “That could be a significant amount of loans that could go unpaid and contribute to zombie homes.”[91]

"The economic effect is not only exclusive to GDP and labor gaps, but also to entitlement programs that rely on payroll taxes being paid by employees." 

TPS recipients, notably Haitians, also fill in significant gaps in sectors where there is a labor shortage. For example, Haitians with TPS are widely employed in nursing homes and as home health aides, which fills a critical labor gap in chronically understaffed healthcare fields.[92] The economic effect is not only exclusive to GDP and labor gaps, but also to entitlement programs that rely on payroll taxes being paid by employees. A study by the Immigrant Legal Resource Center, shows that if TPS holders lose their work authorization, it would result in “$6.9 billion reduction to Social Security and Medicare Contributions over a decade.”[93] An employer would face turnover issues once their TPS employee was no longer legally able to work. It is estimated that employers across the U.S. will experience a cost of $967 million in turnover costs associated with replacing current employees that are able to work due to TPS.[94] The economic impacts that the current administration is taking on TPS will be negative, and short-sighted at best.

V. Policy Recommendation: Provide a Permanent Residency, and Possibly Citizenship for TPS Recipients

Prior to the revocation of TPS, there were many ongoing rumors that the Trump Administration was going to revoke TPS from multiple countries. In light of this rumor, that later on proved to be true, the “Act to Sustain the Protection of Immigrant Residents Earn through TPS Act of 2017” (ASPIRE) was proposed on January 1, 2017 by Representative Yvette Clark (D-NY-9).[95] The ASPIRE bill would provide a pathway for individuals under TPS to apply for permanent residency by providing before a judge that returning to their native country would pose extreme hardship.[96] We propose that individuals that are currently on TPS from a country that has had its TPS not extended be provided the opportunity to apply for permanent residency on the basis of family values that our country has historically placed such a big importance in the role of society.

Bills Proposed

There have been various bills proposed to address the issue of individuals who will not have their TPS extended due to their country no longer having that designation. Representative Carlos Curbelo (R-FL-26) proposed the “Extending Status Protection for Eligible Refugees with Established Residency Act of 2017” (ESPERER).[97] ESPERER would provide a path naturalization by allowing TPS recipients from Haiti, Nicaragua, El Salvador or Honduras to adjust their status to lawfully admitted for permanent resident (LPR).[98] Under this proposal, the applicant must have received TPS status on January 13, 2011.[99] Other requirements include not having been convicted of a felony or receiving more than two misdemeanors.[100]

Representative Nydia Velazquez (D-NY-7) proposed another solution in a bill introduced on November 14, 2017.[101] H.R. 4253, or the “American Promise Act of 2017,” would adjust the status of TPS recipients of all thirteen countries designated for TPS or Deferred Enforced Departure (DED) as of January 1, 2017 to lawfully admitted permanent residence (LPR).[102] To qualify for such an adjustment, the applicant must have been granted or been eligible for TPS, or granted DED on or before October 1, 2017.[103]

ASPIRE, H.R. 4384, would amend the Immigration and Nationality Act of 1965 by inserting language after Section 244 providing that the Secretary of Homeland Security with the statutory ability to adjust the TPS status to a renewable 6-year protected status.[104] This provision similarly to the American Promise Act of 2017 would also apply to all 13 countries that were designated for TPS or DED as of January 1, 2017.[105] Under ASPIRE, the applicant must meet the TPS requirements for nationality, but the applicant must maintain continuous residence in the U.S. for at least five years.[106] This bill would not offer a path to citizenship for those granted a six-year protected status unless they are able to prove extreme hardship and be designated as LPR.[107]

Senator Chris Van Hollen (D-MD) proposed S. 2144, otherwise known as the “Safe Environment from Countries Under Repression and Emergency Act” (SECURE), on November 16, 2017.[108] The bill is very similar to the American Promise Act of 2017 in that it would switch an individual under TPS to LPR.[109] Similarly, it would also allow that individual to apply for naturalization after five years of adjusting to LPR status.[110]

Although representatives from both parties have proposed potential solutions in both chambers of congress, none of the bills have yet made it to the floor to be voted on. Representative Ileana Ros-Lehtinen (R-FL-27) put it very frankly when asked about potential solutions to immigration problems such as TPS that “there’s just no interest for immigration reform generally, and I don’t think there’s much appetite to help these two particular groups of people. It hurts to say it but it’s the political reality.”[111]

Given the importance of the family values, and the profound negative economic consequences of TPS recipients losing their legal status, we should give them the opportunity to apply for naturalization. We propose a similar framework proposed by Senator Chris Van Hollen and Representative Yvette Clark. The applicant designated for TPS should be eligible for LPR should they have been granted or been eligible for TPS or DED on January 1, 2017. A potential applicant for LPR should meet all current law criminal & national security requirements and meet all admissibility requirements for TPS during the time of application for LPR. The individual will be granted LPR status for five years before finally being able to apply for naturalization. These are responsible measures and will ensure that an individual seeking to apply for eventual naturalization will maintain their record of good behavior. This is a responsible, and common-sense approach to solving this TPS debacle.

The proposals described above outline current TPS legislation, as well as our own principles for TPS reform. There are straightforward solutions to provide humanitarian reform, with significant positive economic impacts to TPS holders by allowing them to continue to contribute to the economic and social community, as they have been doing so for decades. The uncertainty created by the Trump Administration’s abrupt reversal of longstanding TPS policy is detrimental to U.S. communities and their country of origin.