President Joe Biden’s administration moved boldly yesterday to solve his most immediate immigration problem at the risk of creating a new target for Republicans who accuse him of surrendering control of the border.
Yesterday, the Department of Homeland Security extended legal protections under a federal program called Temporary Protected Status (TPS) that will allow as many as 472,000 migrants from Venezuela to live and work legally in the United States for at least the next 18 months.
With that decision, the administration aligned with the consensus among almost all the key players in the Democratic coalition about the most important thing Biden could do to help big Democratic-leaning cities facing an unprecedented flow of undocumented migrants, many of whom are from Venezuela.
In a series of public statements over the past few months, Democratic mayors in New York, Chicago, Los Angeles, Philadelphia, and other major cities; Democrats in the House and Senate; organized labor leaders; and immigrant advocacy and civil-rights groups all urged Biden to take the step that the administration announced yesterday.
Extending TPS protections to more migrants from Venezuela “is the strongest tool in the toolbox for the administration, and the most effective way of meeting the needs of both recently arrived immigrants and the concerns of state and local officials,” Angela Kelley, a former senior adviser to Homeland Security Secretary Alejandro Mayorkas, told me immediately after the decision was announced.
Despite the panoramic pressure from across the Democratic coalition, the administration had been hesitant to pursue this approach. Inside the administration, as Greg Sargent of The Washington Post first reported, some feared that providing legal protection to more Venezuelans already here would simply encourage others from the country to come. With polls showing widespread disapproval of Biden’s handling of border security, and Republicans rallying behind an array of hard-line immigration policies, the president has also appeared deeply uncomfortable focusing any attention on these issues.
But immigrant advocates watching the internal debate believe that the argument tipped because of changing conditions on the ground. The tide of migrants into Democratic-run cities has produced wrenching scenes of new arrivals sleeping in streets, homeless shelters, or police stations, and loud complaints about the impact on local budgets, especially from New York City Mayor Eric Adams. And that has created a situation where not acting to relieve the strain on these cities has become an even a greater political risk to Biden than acting.
“No matter what, Republicans will accuse the administration of being for open borders,” Maria Cardona, a Democratic strategist working with immigrant-advocacy groups, told me. “That is going to happen anyway. So why not get the political benefit of a good policy that so many of our leaders are clamoring for and need for their cities?”
Still, it was revealing that the administration paired the announcement about protecting more Venezuelan migrants through TPS with a variety of new proposals to toughen enforcement against undocumented migrants. That reflects the administration’s sensitivity to the relentless Republican accusation—which polls show has resonated with many voters—that Biden has lost control of the southern border.
As Biden’s administration tries to set immigration policy, it has been forced to pick through a minefield of demands from its allies, attacks from Republicans, and lawsuits from all sides.
Compounding all of these domestic challenges is a mass migration of millions of people fleeing crime, poverty, and political and social disorder in troubled countries throughout the Americas. In Venezuela alone, political and social chaos has driven more than 7 million residents to seek new homes elsewhere in the Americas, according to a United Nations estimate. “Venezuela is a displacement crisis approximately the size of Syria and Ukraine, but it gets, like, one one-thousandth of the attention,” Todd Schulte, the president and executive director of FWD.us, an immigration-advocacy group, told me. “It’s a huge situation.”
Most of these displaced people from nations across Central and South America have sought to settle in neighboring countries, but enough have come to the U.S. to overwhelm the nation’s already strained asylum system. The system is so backlogged that experts say it typically takes four to six years for asylum seekers to have their cases adjudicated. If the time required to resolve an asylum case “slips into years, it does become a magnet,” encouraging migrants to come to the border because the law allows them to stay and work in the U.S. while their claims are adjudicated, says Muzaffar Chishti, a senior fellow at the Migration Policy Institute, a center-left think tank.
Former President Donald Trump dealt with this pressure by severely restricting access to asylum. He adopted policies that required asylum seekers to remain in Mexico while their cases were decided; that barred anyone from claiming asylum if they did not first seek it from countries between their homeland and the U.S. border; and, in the case of the pandemic-era Title 42 rule, that turned away virtually all undocumented migrants as threats to public health.
Fitfully, Biden has undone most of Trump’s approach. (The Migration Policy Institute calculates that the Biden administration has taken 109 separate administrative actions to reverse Trump policies.) And Biden and Mayorkas, with little fanfare, have implemented a robust suite of policies to expand routes for legal immigration, while announcing stiff penalties for those who try to enter the country illegally. “Our overall approach is to build lawful pathways for people to come to the United States, and to impose tougher consequences on those who choose not to use those pathways,” Mayorkas said when he announced the end of Trump’s Title 42 policy.
Immigration advocates generally express confidence that over time this carrot-and-stick approach will stabilize the southern border, at least somewhat. But it hasn’t yet stanched the flow of new arrivals claiming asylum. Some of those asylum seekers have made their way on their own to cities beyond the border. At least 20,000 more have been bused to such places by Texas Governor Greg Abbott, hoping to produce exactly the sort of tensions in Democratic circles that have erupted in recent weeks.
However they have arrived, this surge of asylum seekers has created enormous logistical and fiscal challenges in several of these cities. Adams has been the most insistent in demanding more help from the federal government. But he’s far from the only Democratic mayor who has been frustrated by the growing numbers and impatient for the Biden administration to provide more help.
The top demand from mayors and other Democratic interests has been for Biden to use executive authority to allow more of the new arrivals to work. “There is one solution to this problem: It’s not green cards; it’s not citizenship. It’s work permits,” Philadelphia Mayor Jim Kenney told me earlier this week. “All these people need work. They wouldn’t be in [a] hotel, they wouldn’t be lying on streets, if they can go to work.”
That answer seems especially obvious, Kenney continued, because “we have so many industries and so many areas of our commerce that need workers: hotels, restaurants. Let them go to work. [Then] they will get their own apartments, they will take care of their own kids.”
The obstacle to this solution is that under federal law, asylum seekers cannot apply for authorization to work until 150 days after they filed their asylum claim, and the government cannot approve their request for at least another 30 days. In practice, it usually takes several months longer than that to receive approval. The Biden administration is working with cities to encourage asylum seekers to quickly file work applications, but the process cannot be streamlined much, immigration experts say. Work authorization through the asylum process “is just not designed to get people a work permit,” Todd Schulte said. “They are technically eligible, but the process is way too hard.”
The inability to generate work permits for large numbers of people through the asylum process has spurred Democratic interest in using the Temporary Protected Status program as an alternative. It allows the federal government to authorize immigrants from countries facing natural disasters, civil war, or other kinds of political and social disorder to legally remain and work in the U.S. for up to 18 months at a time, and to renew those protections indefinitely. That status isn’t provided to everyone who has arrived from a particular country; it’s available only to people living in the U.S. as of the date the federal government grants the TPS designation. For instance, the TPS protection to legally stay in the U.S. is available to people from El Salvador only if they were here by February 2001, after two major earthquakes there.
The program was not nearly as controversial as other elements of immigration law, at least until Trump took office. As part of his overall offensive against immigration, Trump sought to rescind TPS status for six countries, including Haiti, Honduras, and El Salvador. But Trump was mostly blocked by lawsuits and Biden has reversed all those decisions. Biden has also granted TPS status to migrants from several additional countries, including about 200,000 people who had arrived in the U.S. from Venezuela as of March 2021.
The demand from Democrats has been that Biden extend that protection, in a move called “redesignation,” to migrants who have arrived from Venezuela since then. Many Democrats have urged him to also update the protections for people from Nicaragua and other countries: A coalition of big-city mayors wrote Biden this summer asking him to extend existing TPS protections or create new ones for 11 countries.
Following all of Biden’s actions, more immigrants than ever are covered under TPS. But the administration never appeared likely to agree to anything as sweeping as the mayors requested. Yesterday, the administration agreed to extend TPS status only to migrants from Venezuela who had arrived in the U.S. as of July 31. It did not expand TPS protections for any other countries. Angela Kelley, now the chief policy adviser for the American Immigration Lawyers Association, said that providing more TPS coverage to any country beyond Venezuela would be “a bigger piece to chew than the administration is able to swallow now.”
But advocates considered the decision to cover more Venezuelans under TPS the most important action the administration could take to stabilize the situation in New York and other cities. The reason is that so many of the latest arrivals come from there; one recent survey found that two-thirds of the migrants in New York City shelters arrived from that country. Even including this huge migrant population in TPS won’t allow them to instantly work. The administration will also need to streamline regulations that slow work authorization, experts say. But eventually, Kelley says, allowing more Venezuelans to legally work through TPS would “alleviate a lot of the pressure in New York” and other cities.
Kerri Talbot, the executive director of the Immigration Hub, an advocacy group, points out the TPS program is actually a better fit for Venezuelans, because the regular asylum process requires applicants to demonstrate that they fear persecution because of their race, religion, or political opinion, which is not the fundamental problem in Venezuela. “Most of them do not have good cases for asylum,” she said of the new arrivals from Venezuela. “They need TPS, because that’s what TPS is designed for: Their country is not functional.”
Biden’s authority to expand TPS to more Venezuelans is likely to stand up in court against the nearly inevitable legal challenges from Republicans. But extending legal protection to hundreds of thousands of Venezuelans still presents a tempting political target for the GOP. Conservatives such as Elizabeth Jacobs, the director of regulatory affairs and policy at the Center for Immigration Studies, have argued that providing work authorizations for more undocumented migrants would only exacerbate the long-term problem by encouraging more to follow them, in the hope of obtaining such permission as well.
Immigration advocates note that multiple academic studies show that TPS protections have not in fact inspired a surge of further migrants from the affected countries. Some in the administration remain uncertain about this, but any worries about possibly creating more long-term problems at the border were clearly outweighed by more immediate challenges in New York and other cities.
If Biden did nothing, he faced the prospect of escalating criticism from Adams and maybe other Democratic mayors and governors that would likely make its way next year into Republican ads denouncing the president’s record on immigration. That risk, many of those watching the debate believe, helped persuade the administration to accept the demands from so many of Biden’s allies to extend TPS to more undocumented migrants, at least from Venezuela. But that doesn’t mean he’ll be happy about this or any of the other difficult choices he faces at the border.