The Homeland Security Department’s citizenship agency has created a backdoor pathway to citizenship that is open to some of the hundreds of thousands of migrants who came to the U.S. illegally but are now under what is known as temporary protected status.
A policy issued this month allows TPS beneficiaries to apply for preapproval to travel outside the U.S. When they return, they will be deemed “inspected” at the border. The policy clears a key hurdle by effectively scrubbing an illegal entry from their records.
Previously, TPS beneficiaries returned under the same status they left.
The policy is retroactive, meaning U.S. Citizenship and Immigration Services can grant the same “inspected” status to TPS beneficiaries who left and returned before the changes.
USCIS told The Washington Times that it doesn’t know how many people to expect to take advantage of the new travel rules or apply for an adjustment of status, but the numbers could be massive, some experts said.
“I can’t guess about numbers, but this is a path to amnesty for hundreds of thousands of people who have entered the U.S. illegally,” said Ken Cuccinelli, who was acting director at USCIS and deputy secretary at the Department of Homeland Security in the Trump administration.
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Mr. Cuccinelli called the policy “another brutal stomping of the rule of law.”
TPS grants migrants — either in the U.S. illegally or legally but on short-term visas — a stay of deportation if their countries face natural disasters, war, disease or political instability. TPS is supposed to be temporary, but most beneficiaries are eager to find ways to stay permanently.
The hiccup comes if they came illegally in the first place, which means they were never “inspected” or “admitted” by border authorities. Inspection is a requirement for adjusting status.
Under the old policy, those who left the country would be subject to a bar on their return as punishment for their previous unlawful presence.
Under the new policy, TPS beneficiaries will have advance permission to leave and return, surmounting the bar. Because they are now deemed “inspected” upon their return, they are eligible for adjustment of status.
Immigrant rights advocates have been pushing for TPS beneficiaries to be eligible for permanent status and eventual citizenship. The Biden administration has joined that call but has been unable to get that change through Capitol Hill.
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Critics said the TPS travel rules chip away at immigration law without congressional authority.
“They’re doing via policy what Congress is not allowing them to do,” said Emilio Gonzalez, who ran USCIS in the Bush administration. “These folks are going to do everything possible to turn the immigration laws on their head.”
USCIS said TPS holders can take advantage of the change only “if they have an independent basis on which to do so.”
“They are not eligible to adjust status solely based on holding TPS,” the agency said.
That independent basis is usually holding down a job or having a qualifying family relationship that makes them eligible for a green card. Marrying a citizen or legal permanent resident is a common avenue.
The Obama administration did something similar with illegal immigrant “Dreamers,” allowing them to apply for “advance parole” — permission to leave and return and be deemed inspected.
The trips outside the U.S. were supposed to have a valid purpose, such as education. Some colleges began offering classes that involved little more than a trip to Mexico to help DACA-enrolled students take advantage of the loophole.
As of June 2016, four years into the DACA program, about 5,000 people had taken advantage of advance parole to apply for adjustment of status.
Robert Law, who ran USCIS’s policy shop in the Trump administration, said it would be particularly odd for USCIS to approve travel by TPS beneficiaries who plan to go back to their home countries. Under the definition of TPS, those countries are still so broken that people can’t return.
“If it’s unsafe to return, how could they safely visit?” Mr. Law said.
USCIS did not address that specific issue in response to an inquiry from The Times. Instead, it pointed to an online page about TPS travel approval in general.
Mr. Law, now director of the Center for Homeland Security and Immigration at the America First Policy Institute, said he expects many TPS holders to take advantage of the new policy.
“It’s hard to imagine a TPS beneficiary not trying this,” he said. “They could travel to Mexico or Canada, or their home country or anywhere else, and return, and voila — they can now get a green card if otherwise eligible.”
Jessica Vaughan, policy studies director at the Center for Immigration Studies, said TPS was intended to be temporary and Congress clearly stated that those who received the protection weren’t supposed to have a pathway to permanent status.
The Supreme Court, in a 9-0 ruling last year, “validated” that interpretation, Ms. Vaughan said.
“On the spectrum of audacity in government regulatory actions, this one, in defiance of both Congress and the Supreme Court, is over the top,” she said. “If they don’t like the law, they should work with their allies — the Democratic majority in Congress — to try to change it.”
TPS has become controversial in the past decade.
Intended to provide temporary protection, the program has instead created permanent lives for hundreds of thousands. Presidential administrations have regularly renewed the designations every 18 months.
Some migrants from El Salvador and Honduras have lived under TPS for more than two decades, and Haiti’s initial TPS designation dates back to the 2010 earthquake.
The Trump administration tried to end those designations but was blocked by court rulings.
The Biden administration has gone the other direction and generously expanded the universe of TPS beneficiaries. It has granted designations to Afghanistan, Ukraine, Venezuela, Haiti, Burma, Cameroon, Somalia, Sudan, South Sudan, Syria and Yemen.
The Congressional Research Service calculated that more than 350,000 people were TPS beneficiaries as of February. That didn’t include the numbers from Ukraine, Afghanistan, Cameroon and Sudan, which had just opened windows.
That number could soon soar. The Biden administration is facing a deadline for a decision on whether to renew Venezuela’s status for another 18 months. Activists have asked Homeland Security to go further and redesignate the country.
That would create a window of eligibility for Venezuelans who arrived after the March 2021 deadline.
In a letter last week demanding the new protections, Democratic senators said 250,000 Venezuelans would qualify under a window of eligibility. Many of those illegally jumped the southern border as part of the Biden migrant surge.
“Denying access to TPS to more recent arrivals will not serve as an effective deterrent to future border crossings given the desperation of Venezuelans to flee unsustainable conditions,” the senators wrote. “It will simply ensure that Venezuelans will live in poverty and at risk of deportation in the United States, with no other options.”
Mr. Gonzalez said some of those new arrivals are applying under the previous TPS designation, using fraudulent documents to try to backdate their presence.
“When you start to create a policy that stretches as far as it can go, that’s an invitation to more fraud,” he said.
That was what happened in 1986 during the last major amnesty. Border Patrol agents caught migrants showing up with old gas station receipts to try to prove they had been in the country for years when, in fact, they were new arrivals.