TPS for Palestinians?

By Nayla Rush, August 15, 2016

Secretary of Homeland Security Jeh Johnson has announced the extension of Temporary Protected Status (TPS) for Syrians for another 18 months, through March 31, 2018. This allows visitors and illegal aliens to remain here legally, enabling them to get work permits, Social Security numbers, driver's licenses, etc.

But it's not just for Syrians. The language of the announcement (and of the relevant statute) says TPS is also available to "persons without nationality who last habitually resided in Syria." Being formally stateless, Syria's 560,000 Palestinian refugees would appear to qualify. So how many of them – if any – have benefitted, and will benefit from this form of amnesty?

What is TPS? According to USCIS, "TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA), or to eligible persons without nationality who last habitually resided in the designated country."

The Secretary of Homeland Security designates a country for TPS based on "conditions that temporarily prevent the country's nationals from returning safely , or in certain circumstances, where the country is unable to handle the return of its nationals adequately." Those temporary conditions can include:

  • Ongoing armed conflict (such as civil war)
  • An environmental disaster (such as earthquake or hurricane), or an epidemic
  • Other extraordinary and temporary conditions

TPS beneficiaries cannot be removed from the United States nor can they be detained by DHS on the basis of their immigration status. They can work in the U.S. (they are issued an employment authorization document or EAD), and can apply for a travel authorization. TPS is, nominally, a temporary benefit and does not lead to lawful permanent resident status (green card) or citizenship.

To be eligible for TPS, one must be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country, and have been continuously physically present in the United States since the most recent designation date.

TPS is available to designated nationals who are present in the U.S. legally or illegally. Individuals who entered the United States with a temporary visa and stayed once their visa expired can apply for TPS as well as those who entered the U.S. illegally. Those in the U.S. holding a valid nonimmigrant visa are also eligible for TPS, which they might do if, for instance, their visa was about to expire.

Once granted TPS, individuals must re-register during each re-registration period to maintain their status. However, it is highly unlikely that those who fail to register or re-register are asked to leave the country.

Thirteen countries are currently designated for TPS: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and Yemen. The number of TPS holders in the U.S. today is estimated at 340,000.

TPS has had its fair share of debate. One point of contention revolves around its everlasting so-called temporary status. The Migration Policy Institute has written that some critics believe "lengthy TPS grants run contrary to Congress's intent that the program be used to provide short-term protection". It is true that TPS grants can be renewed indefinitely. MPI adds:

Ongoing TPS renewals are a source of some controversy in the United States, as some believe that these renewals create a state of permanent temporariness for beneficiaries. Statistics indicate that some of those currently holding TPS have held that status for lengthy periods of time... [S}ome Somali TPS holders have been in the United States for more than 20 years, as Somalia's TPS designation has been continuously renewed since 1991.

Whether or not a path to Lawful Permanent Residence should be made available to TPS beneficiaries is another point of discord. As noted, in principle, TPS holders cannot adjust to LPR status. In June 2013, however, a federal appeals court in Ohio rejected DHS's position and ruled that TPS did in fact constitute a formal admission or parole. This decision, MPI explains, "allowed the plaintiff, a TPS holder from Honduras, to apply for adjustment of status based on a petition filed by his wife, a U.S. citizen. In June 2014, a U.S. district court in Washington State issued a similar decision. As a result, some TPS holders who live in Kentucky, Michigan, Ohio, and Tennessee (the states within the jurisdiction of the Sixth U.S. Circuit Court of Appeals) and in the western district of Washington State may now adjust status if they are the immediate relative (spouse, minor child, or parent) of a U.S. citizen. In all other jurisdictions DHS's interpretation of the law holds sway."

TPS for Syrians. Syria was first designated for TPS in March 2012, and that initial designation ran for 18 months. Those who did register in 2012 had the opportunity to re-register (in effect, to renew their status) on multiple occasions, as DHS extended its TPS designation for Syrians in 2013, 2015, and, just recently, 2016. On each of these occasions as well, the Secretary of Homeland Security redesignated Syria for TPS, meaning that those who did not register previously could do so, and allowing new arrivals to apply.

Designating a country for TPS is different from "redesignating" it. The initial designation of a country (open to extension) was intended to give a "blanket relief" to those already in the U.S. "who may not meet the legal definition of refugee but are nonetheless fleeing—or reluctant to return to—potentially dangerous situations." The one-time designation was intentional and was meant to act as a deterrent against future opportunistic flows. On the other hand, "redesignation" – reopening TPS to new arrivals – can be a pull factor. As MPI put it, "only individuals who are within the United States at the time that a TPS designation is initially made are eligible to apply for protection (though the cutoff date has been extended in some cases). This provision was created in part to address concerns that a grant of TPS would lead to a surge in new immigration."

The decision to ignore this concern and reopen (not just extend) TPS for Syrians on multiple occasions is quite telling, but not surprising. It underlines the Obama administration's full dedication to helping Syrian nationals (and others) come to the U.S. and stay here, whatever the costs and risks involved. It also shows the administration's lack of dedication to enforcing immigration laws; repeatedly allowing new arrivals from Syria to access TPS is akin to encouraging more in the future to enter the U.S. illegally or overstay their visas.

According to government estimates, 5,800 current Syrian TPS beneficiaries are expected to file for re-registration under this latest extension. An additional 2,500 individuals are expected to file their initial application under the latest redesignation.

This means, at least 8,500 people will soon benefit from TPS in the U.S. What is not known is how many of these are actually Syrians, and how many, if any, are "individuals without nationality who last habitually resided in Syria" – i.e., Palestinians.

Ordinarily, the reference to "eligible individuals without nationality who last resided in the designated country" who may also be granted TPS carries very few implications. However, Syria was the home to an estimated 560,000 Palestinian refugees prior to the beginning of the Syrian crisis in 2011. Since then, nearly 110,000 have fled to neighboring countries (mainly to Jordan and Lebanon) and beyond, according to United Nations Relief and Works Agency for Palestine Refugees (UNRWA). Most of the remaining 450,000 have been internally displaced.

According to the European Network on Statelessness,"Palestinians constitute one of the largest stateless populations of the world." Moreover, "stateless persons are entitled to a protection status based only on the fact that they have no nationality." The recognition of Palestine as a state by a majority of the world's governments has not yet resolved issues regarding nationality.

For Palestinians residing in Lebanon and Syria, the Institute on Statelessness and Inclusion explains, "neither naturalisation on the basis of long-term residence nor access to nationality for otherwise stateless children of Palestinians are available as options to reduce the incidence of statelessness among this population. Thus, the vast majority of Palestinians registered by UNRWA in these two countries – over one million persons – are stateless." Jordan is a different picture, since "most Palestinian refugees acquired Jordanian nationality under the country's 1954 Nationality Law."

Europe has become an attractive destination for Syria's Palestinians, especially after Jordan's and Lebanon's decision to close their borders to Palestinians from Syria in 2015. UNRWA spokesman Christopher Gunness told Al Jazeera, "We estimate that at least 60,000 have fled the region [outside UNRWA's jurisdiction of Jordan, Lebanon, and Palestine]. Probably a good many of those have fled to Europe."

The attraction might now be to try come to the United States to visit family or friends – the Palestinian population in the U.S. is estimated at 150,000 to 200,000 – or enter the U.S. illegally, and then apply for TPS. Palestinian refugees are provided with travel documents in lieu of passports.

All this is speculation, of course, but with the unending war in Syria, the burden of millions of refugees on an already collapsing Middle East, the swift change of heart of an overly welcoming Europe, the United States could very well be the next desired destination of many Palestinian refugees from Syria. Add to this this administration's open-border policies and relentless efforts to welcome more and more refugees from Syria and beyond.

Will the administration tell us how many, if any, Palestinians will get to stay in the United States under TPS for Syrians, or are we to keep on guessing?