Center for Immigration Studies Executive Director Mark Krikorian has penned an article for National Review Online's "The Corner" titled "Restoring the 'Temporary' to Temporary Protected Status", which compares past abuses of executive power in the immigration arena with those that have come to pass since Temporary Protected Status (TPS) was enacted into law.
As Krikorian points out, the problem is that the executive branch has perverted the notion of temporary protection to being open-ended, decades-long stealth amnesties on the flimsiest of excuses, for a whole host of different nations. Perhaps not surprisingly, even though the original purpose of TPS was to curb the kinds of abuse that the executive branch exercised prior to its enactment, it has become just as bad.
Certainly a key reason is that TPS is inevitably wedded to the grant of work authorization — the theory being that if you're going to allow an alien in the United States from one of the affected countries to stay in the country under color of law, then you might as well allow him or her to work. But the work becomes the end goal. It's no secret that some countries, such as El Salvador, have become dependent on remittances sent home to relatives by TPS-registered aliens here.
The theory of granting work permits sounds good, but the irony is that many of those who benefited from TPS when it was originally granted oh-so-many years ago were in the United States illegally to begin with. They had no permission to work then, but, voila!, the godsend of an earthquake, a hurricane, an epidemic descends (horrible for those back home, but oh well), TPS is granted, work permits are handed out, and they are home free, quite likely for many years given the government's track record.
Krikorian is right that decoupling TPS and work authorization is certainly a key part of the equation in reforming TPS. Whether Congress might find that a step too far is hard to say; so far, Congress finds any kind of immigration reform a step too far. If so, then perhaps a first step would be to permit work authorization only for those who are in the country legally on the date that TPS for a country takes effect. This would affect nonimmigrants since the right to work inheres in any resident alien's status. Thus, illegal aliens from that country would not be removed, but would not be given work permission either.
But to ensure that work permits aren't granted willy-nilly by the Department of Homeland (DHS), acting on behalf of the chief executive, it isn't just the TPS portion of the Immigration and Nationality Act (INA) that needs to be amended. That's because there is another portion of the INA that, as written, gives the executive branch unfettered authority.
Section 274A(h)(3) says this about aliens who are "unauthorized" to work:
(3) Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General. [Emphasis added.]
It's that expansive phrase "authorized to be so employed ... by the Attorney General" (whose authority in this respect has since been transferred to the DHS secretary) that has resulted in the specious grant of literally millions of work permits, not just to TPS recipients but to many other categories of aliens including DACA recipients.
Doing so causes significant harm to un- and under-employed Americans and resident aliens who must compete for those jobs, and it acts as a magnet to other aliens willing to violate immigration laws in the hope of being shoe-horned into some artificially made-up executive program.
Unless and until the phrase is excised from the law, expect the abuse to continue.