On Thursday, the House passed H. R. 1689, requiring DHS Secretary Markwayne Mullin to “designate Haiti for temporary protected status” until April 2029. Where it goes from here is anybody’s guess, but this will likely be a vote even the bill’s sponsors regret.
“Temporary Protected Status”
Beginning under President Eisenhower, various administrations used an ad hoc designation, “Extended Voluntary Departure” (EVD), to allow nationals of certain countries to remain in the United States due to concerns they could not be safely repatriated because of wars or other disasters back home.
Cuba and 15 other countries had been designated for EVD status by 1989 when Congress retook its prerogative over immigration policy by regularizing and codifying the practice in statute.
Specifically, section 302 of the Immigration Act of 1990 (IMMACT 90) amended the Immigration and Nationality Act (INA) by adding a new section 244, “Temporary Protected Status” (TPS).
As USCIS has explained, that provision allows the DHS secretary to:
designate a foreign country for TPS due to conditions in the country 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. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.
Countries may be designated for TPS due to “ongoing armed conflict”, “environmental disaster”, or some similar “extraordinary and temporary condition”, and while such a designation is in effect, an alien granted TPS status cannot be removed and may be granted work and travel authorization.
The biggest issue with respect to this humanitarian benefit is that the “temporary” in TPS is, all too often, a poor descriptor of how that authority has been utilized in the past.
For example, El Salvador was first designated for TPS in March 2001 due to a series of earthquakes there, and it has been redesignated ever since even though the ground stopped shaking long ago. Somalia was first designated nearly a decade earlier.
A Brief History of TPS for Haiti
Haiti has been designated for TPS since 2010, again, following an earthquake in that island nation, and as my colleague Elizabeth Jacobs has explained:
The first Trump administration attempted to terminate the country’s designation in 2018, but that termination was effectively halted by litigation, and the country’s designation was continued during the Biden administration. The most recent designation and extension, in July 2024, was set to expire on February 3, 2026.
Jacobs also noted that “each extension or redesignation of Haiti’s TPS designation has allowed more inadmissible arrivals, even those who arrived illegally, to obtain TPS”, from what DHS described as an “estimated ... 57,000 Haitians” who “were eligible to register for TPS” in May 2011 “to 520,694” by July 2024.
You read that correctly, and keep in mind that at the same time the Biden administration redesignated Haiti for TPS in July 2024, it was also ushering in thousands more Haitian nationals monthly under its Cuba, Haiti, Nicaragua, and Venezuela parole program, “CHNV Parole”.
By the time Trump II terminated that illegal de facto resettlement policy in January 2025, 213,150 Haitians had come to the country via CHNV Parole, a figure that does not include an additional 146,000-plus Haitians whom DHS’s Office of Homeland Security Statistics (OHSS) reports scheduled appointments at the Southwest border ports of entry using the CBP One app (the similarly illegal “CBP One app interview scheme”).
If you want to know why the Laken Riley Act empowers state attorneys general to sue DHS whenever it abuses its parole authorities, look no further than those two programs, but in any event, roughly 4 percent of the total population of Haiti came to the United States in just a two-year period under Biden.
The Courts Get Involved
In November, DHS announced it would be terminating Haitian TPS effective February 3, but just before that termination was set to take effect, Judge Ana Reyes of the U.S. District Court for the District of Columbia issued an order in Miot v. Trump, staying termination of TPS for Haiti pending review.
A month later, the Supreme Court stated it would hear arguments on the government’s request to stay the order in Miot, and what’s more, treat the government’s application as a petition “for a writ of certiorari before judgment”, that is, before the court of appeals considered the issues in the case.
That’s an extraordinary action because the Court generally allows the circuits to resolve legal issues first, but a decision the justices likely made because section 244(b)(5)(A) of the INA is clear that “there is no judicial review of any determination” by DHS “with respect to the designation, or termination or extension of a designation, of a foreign state“ for TPS.
H.R. 1689
Briefing is set to finish in Miot next week, which brings me to H.R. 1689, the pending bill that as amended would require DHS to extend TPS for three-plus years.
It was sponsored by Rep. Laura Gillen (D-N.Y.) and cosponsored by (among others) Rep. Mike Lawler (R-N.Y.), but it only came to the floor of the House for a vote because six Republicans crossed the aisle to vote with every Democrat representative in favor of H. Res. 965, a discharge petition forcing the speaker to bring it up for consideration.
The six are Reps. Don Bacon (R-Neb.), Brian Fitzpatrick (R-Pa.), Carlos Gimenez (R-Fla.), Lawler, Nicole Malliotakis (R-N.Y.), and Maria Salazar (R-Fla.), and in addition to agreeing to hold a vote, they also agreed to amend H.R. 1689 to extend TPS for Haiti not until February 3, 2027 (the date in the original text) but until April 20, 2029 — three months into the next administration.
On the final vote for passage in the House, the GOP sextet above was joined by four more Republican members who pressed the “aye” button, Reps. Mike Carey (R-Ohio), Mario Diaz-Balart (R-Fla.), Richard McCormick (R-Ga.), and Mike Turner (R-Ohio).
If the next president is a Democrat, bet that Haitian TPS will become as close to a permanent fixture in the law as is imaginable — assuming the Senate takes up and passes the bill and the president doesn’t veto it, two major assumptions, indeed.
The Strange Senate Supermajority Requirement in Section 244(h) of the INA
The odds of a Trump veto should be considered high, but then so are the odds of failure in the Senate, and not just because passing any bill in the Upper Chamber is a challenge.
The drafters of IMMACT 90 envisioned a scenario in which a TPS designation would create a constituency and take on a life of its own, which is why they added a subsection (h) to section 244 of the INA, “Limitation on consideration in Senate of legislation adjusting status”.
As the summary in the IMMACT 90 conference report explains that provision, it “Limits consideration in the Senate of legislation adjusting the status of such aliens [granted TPS], by requiring an affirmative vote of three-fifths of the Senate.”
More precisely, section 244(h)(1) of the INA states that “it shall not be in order in the Senate to consider any bill” that “has the effect of ... limiting the application of” the bar on adjustment of status to lawful permanent residence for TPS recipients unless 60 senators vote in favor of it.
Normally, passage of a bill only requires the votes of 60 senators and its questionable whether the 101st Congress that passed IMMACT 90 could limit their successors in the current 119th Congress from taking action, and H.R. 1689 doesn’t give green cards to Haitians, but expect arguments to arise that — by superseding the DHS secretary’s clear authority to terminate Haitian TPS — H.R. 1689 “has the effect” of limiting the bar to adjustment of status for TPS recipients absent a supermajority in the Senate.
Senate Majority Leader John Thune (R-S.D.) may welcome such a challenge as it would allow him to pass the question to Senate Parliamentarian Elizabeth MacDonough for what could be a considerable period of review, but regardless there are currently 53 Republican senators and 13 of them would have to vote with every Democrat (and the two Independents who caucus with the Democrats) for the bill to make it to the president’s desk.
Perhaps that could happen, but more likely the Senate will be satisfied simply waiting for the Supreme Court in Miot and then ignoring the bill altogether.
The Conflicting Rationales for Extending Haitian TPS
Passage in the Senate would be more likely if the sponsors of H.R. 1689 could agree on why Haitian TPS needs to be extended.
In justifying his signature on the discharge petition, Lawler explained:
The situation in Haiti remains dire. Rampant gang violence, political instability, and a worsening humanitarian crisis make it clear that conditions on the ground have not improved. There is no doubt that sending individuals back into that environment is dangerous.
It’s beyond cavil that Haiti isn’t on many destination lists, but then the country has ping-ponged from anarchy to repressive martial law ever since “President” Jean-Claude “Baby Doc” Duvalier was forced to flee the country in 1986, and short of a U.S. military intervention (there have been at least two, one lasting 20 years in the early 20th century), things are unlikely to get better anytime soon.
Short of bringing all 12 million-plus (current) residents of Haiti here, however, continued TPS will simply benefit the ones who have already arrived — not make the situation for the ones who remain better — and thus encourage more Haitians to make their way here illegally, while also depriving the nation of the human capital of those who are here.
Speaking of human capital, Malliotakis skipped the political instability in Haiti in defending her vote, explaining instead that:
We’ve heard from nursing homes in our district that will lose skilled and dedicated nursing staff if TPS is not renewed. These are Haitian immigrants who are working, paying taxes and contributing to our economy and fulfilling a healthcare need. At a time when our healthcare system continues to face workforce shortages, their role is more important than ever. To strip them of their status and deport them to a country in peril would be uncompassionate and misguided.
Among the biggest challenges to proper medical treatment in Haiti are “a strong dependence on external aid” and “inequalities in access to primary care”.
Just imagine how much medical service would be in Port-au-Prince if the “skilled and dedicated” Haitian “nursing staff” currently working in the United States with TPS were to return and take the knowledge and wages they have earned in this country back home to bolster the “external aid” on which the Haitian healthcare system currently relies.
Simply put, among the reasons for the long-standing situation in Haiti are (1) its proximity to the United States, and (2) the willingness of various administrations to allow virtually unfettered migration of (among others) its “skilled and dedicated” healthcare professionals.
While enactment of H.R. 1689 will enrich Haitians here, it won’t make anything back home any better.
The (Totally Foreseeable) Unexpected Consequences
Finally, there are clear negative consequences that will flow from the House passage of this bill that neither Lawler nor Malliotakis nor any other sponsor has apparently considered — or at least voiced.
Again, Haiti is reasonably close to the United States and when prior administrations (like Biden’s) have made it clear that there are benefits nationals of that country can accrue by coming here illegally, a massive illegal influx follows.
Trump isn’t going to allow Haitians to fly here as Biden did with CHNV Parole, and with the Southwest border virtually locked down, nationals of the country who take the sponsors of this bill up on their implicit offer will hit the high seas and attempt the dangerous passage through the Caribbean or trust their lives and their families’ lives to rapacious criminal smugglers and corrupt officials.
Either effort will result in countless deaths (or worse), but an uptick in illegal arrivals from the west side of Hispaniola is inevitable thanks to the House vote.
More directly, however, passage of this bill in the House all but guarantees the Trump administration won’t be offering TPS to nationals of any country anytime soon, even if Godzilla shows up on its shores while a meteor is about to make a direct impact on its capital.
Section 244 of the INA gives the DHS secretary unfettered authority to designate a country for TPS, and now that Mullin (a former plumber who likely knows a lot about “ratchet effects”) understands that he can turn the TPS flow on but can’t reverse it, he will use that authority very selectively (read: “never”).
“Temporary” Does Not Mean “Permanent”
“Temporary” Protected Status was never meant to be permanent, but now that a bipartisan gang of House members has added a patina of permanence to it, this and future administrations will either never use it or employ it to flood the country with those aliens it favors. Neither outcome was intended by its creators, but there’s a lot “unintended” in H.R. 1689.