Five casually racist questions you might have to answer when people realize you oppose the displacement of two hundred thousand Salvadorans.

1. Who are the TPS beneficiaries?

Temporary Protected Status (TPS) is a procedure outlined by Congress in the Immigration and Nationality Act of 1990. It extends to citizens from select countries in which armed conflicts, environmental crises, or other “extraordinary and temporary” conditions prevent safe return. Currently, the United States offers TPS to citizens of El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen.

2. Aren’t they undocumented / living here illegally?

It is complicated, but ultimately no. TPS beneficiaries are documented; and rather than ‘legal’ or ‘illegal,’ they are more or less exceptions to federal immigration laws. This is because TPS, as a unique and highly specific form of immigrant status, entails state-sanctioned protection from mandatory deportation. It is only extended to those for whom, the Department of Homeland Security (DHS) has determined, it would be unsafe or impossible to enter the United States via ordinary (read: legal) means. Although some beneficiaries arrive legally, the defining factor of TPS is how recipients can live in the United States legally even if after entering the country illegally.

But like any form of residency, the DHS does not allow just anyone to apply for TPS. Among other things, an eligible applicant must:

  • Belong to a nation approved by the DHS
  • Disclose if he/she/they have entered the country illegally or ‘without inspection’
  • Disclose if he/she/they have overstayed on a travel visa
  • Prove that he/she/they have been continuously physically present in the United States since the effective date of a TPS extension
  • Not have been convicted of a felony
  • Not have been convicted of 2 or more criminal misdemeanors
  • Not be found in contempt of any non-waivable criminal or security-related national standard, such as persecuting another individual or engaging in/inciting terrorist activity

It is significant that expelling TPS beneficiaries does little to curb illegal immigration. Nativist organizations such as the Center for Immigration Studies include TPS beneficiaries in their annual undocumented population estimates but in reality TPS recipient rates do not overlap with rates of undocumented citizens. The purpose of TPS is to offer a humane alternative to undocumented citizenship for those unable to follow the legal immigration path due to circumstances identified by the DHS as “extraordinary and temporary.” Recipients are legal and documented members of the United States population.

In the case of El Salvador, stripping recipients of legal protection before their native government has offered them safe repatriation is the equivalent of reducing almost 200,000 former United States taxpayers and laborers to unlawful presences. This, coupled with the fact that some will likely try to remain in the United States illegally rather than return to the circumstances they fled, indicates that eliminating TPS for Salvadorans will not lower national rates of undocumented immigrants and may even increase them.

3. Aren’t they costing Americans money?

Even excluding the approximately $120,000,000 annual revenue that application and work permit fees generate for the United States, TPS beneficiaries offer substantial contributions to the American economy.

Partially because their legal residential status grants them employment opportunities, federal protections, and residential security not available to undocumented citizens, the rate of labor force participation among Salvadoran TPS recipients is 88 percent—well above that of the overall United States population (63 percent). The five leading industries for these beneficiaries are construction, food service, landscaping services, traveller accommodations, and grocery stores, all of which contribute to the national economy. Ten percent of beneficiaries, as self-employed laborers or small business owners, likely create jobs for Americans as well.

An estimated $109.4 billion would be lost from United States GDP over a span 10 years without the contributions of Salvadoran TPS recipients, according to the Center for American Progress.

4. Why should I care about temporary residents? Aren’t they foreign / unassimilated / not real Americans?

What constitutes a ‘real American’ is very much up for debate (as is whether or not anyone is obligated to assimilate to a dominant culture). But for argument’s sake, the answer is still no.

When we imagine ‘temporary’ protection, we typically envision a timeframe of several weeks or months. In doing so, we fail to think on a national scale. Post-crisis repatriation takes years or decades: even though TPS beneficiaries know that their protected status will be revoked once their home country becomes safely inhabitable, many end up spending the majority (if not the entirety) of their lives in the United States.

Of the TPS beneficiary population for El Salvador alone, 39,300 (15 percent) arrived as children under the age of 15, and of that number, 51 percent have been present in the United States for 20 years or more. During their time in America, they have legally acquired households, jobs, mortgages, taxes, and healthcare. Nearly 40 percent hold high school diplomas. The overwhelming majority (85 percent) speaks English, with roughly half of that number speaking fluently or near-fluently. An estimated 192,700 children of Salvadoran TPS beneficiaries are native-born Untied States citizens.

5. Why don’t / didn’t they just apply for green cards?

This is where it gets tricky. The problem is essentially that the two processes (qualifying for citizenship and qualifying for TPS) are fundamentally incompatible.

The objective of TPS is to review emergency applicants according to the criteria of a temporary stay (rather than a long-term citizenship) in order to provide them with [1] safe residence, [2] employment eligibility, and [3] taxpaying status, all within a reasonable time frame and without compromising national security. For most successful candidates, applying for a green card would seem the next logical step. But for all of the same reasons that an individual qualifies for TPS, they are likely ineligible for a green card.

No beneficiary can apply for a green card unless they return to their home country to have their visa processed at a consulate post. While this is possible for a select few, the TPS is designed for (and overwhelmingly used by) those with no other option but to enter or remain in the United States illegally. As long as they are TPS recipients, these individuals are not accountable for having initially overstayed their visa or entered the country without inspection. But leaving the United States, even to obtain a visa for legal re-entry, can result in the automatic revocation of TPS, at which point an individual ceases to be legally exempt from having once entered the country without inspection. As a result, an individual with a revoked TPS can have their re-entry barred for up to ten years.

A number of federal appellate circuits have questioned the legitimacy of this by arguing that granting a TPS is a form of ‘inspection’ by the DHS, and therefore legitimizes the re-entry of its recipients. In Ramirez v. Brown, the Ninth Circuit Court of Appeals called the process to receive TPS “comparable to any other admission process,” and declared those who enter the United States without inspection but still receive TPS eligible for citizenship. But in all cases outside of the Sixth and Ninth Circuits, the official position remains that all non-inspected TPS residents are “not eligible to adjust to permanent residence even if otherwise eligible.”

In short, TPS legislation is designed so that most beneficiaries are [1] unable to apply for American citizenship, and [2] can be denied re-entry for up to a decade after their TPS expires, despite legally residing in the Untied States for much of their lives.

The Trump Administration’s move to deny TPS benefits to Salvadorans will displace and endanger hundreds of thousands of productive, tax-paying United States residents. About 61,000 mortgages will be in jeopardy. Hundreds of thousands of long-term United States residents, including 67,800 who arrived when they were less than 15 years of age, could be deported; the roughly 192,700 native-born American children of Salvadoran TPS beneficiaries will be separated from their families or forced to move to a country that cannot safely integrate them.

Statistics:
Center for American Progress (2017)
Center for Migration Studies (2017)

Legislation:
Immigration and Nationality Act, 8 U.S.C. §245 (1990)

Cases:
Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017).