This week the Biden administration fulfilled its campaign promise to designate Venezuela for Temporary Protected Status, (TPS), extending temporary regular status and the ability to apply for work authorization to more than 300,000 Venezuelans. The TPS designation is available to Venezuelan nationals who were “continuous residents” of the United States as of March 8, 2021, and lasts for 18 months until September 22. The action comes following years of legislative and advocacy efforts which were left unanswered by the Trump administration as it advanced efforts to revoke TPS for migrants of other countries in crisis.
In 2019 the House of Representatives passed the Venezuela TPS Act of 2019 in a historic vote with bipartisan support, only for the legislation to be blocked repeatedly as it was subsequently brought up in the Senate. This year a group of Senate Democrats led by Bob Menendez (D-NJ) proposed a new version of the Senate legislation, which notably earmarked $10 million to support regional countries’ domestic capacities to process asylum cases and provide essential services to Venezuelan migrants.
With just hours remaining in his term, former President Donald Trump issued a memorandum enacting Deferred Enforced Departure (DED) for Venezuelan migrants. DED is similar in nature to TPS, but there are important distinctions in their purpose and implementation that make TPS a much more meaningful designation:
- First, TPS is a temporary legal immigration status, while DED is a temporary stay of removal during which eligible nationals can no longer be detained or deported. While both TPS and DED holders can apply for work authorization, those in the U.S. under DED are not considered legal immigrants in the U.S.
- Additionally, TPS is based in statute and is traditionally designated by the Secretary of Homeland Security, while DED is designated by the president as an extension of his authority to conduct foreign policy. This makes TPS a more durable designation across presidential administrations, while DED can be revoked at the president’s discretion.
- TPS is considered a humanitarian protection, granted to eligible nationals from specifically designated countries that are experiencing conflict, environmental disaster, or humanitarian catastrophe, making it inhumane to deport nationals back to their country in crisis. DED on the other hand is designated not out of humanitarian considerations but out of interest for U.S. foreign policy objectives.
On top of these distinctions, the timing of Trump’s memorandum brought further limitations to the DED designation. Because DED was enacted with mere hours left in Trump’s presidency, this measure was left for Biden’s Department of Homeland Security—whose Secretary was not confirmed by the Senate until February 2—to implement. This means that, while DED immediately went into effect, before March 8 the U.S. Citizenship and Immigration Service (USCIS) website had not been updated to allow Venezuelan nationals to apply for work authorization.
Given the devastating humanitarian and economic crisis in Venezuela, as well as the growing threat of political persecution, the Biden administration’s move to enact TPS for Venezuela is meaningful. At the same time, it is important to recognize that TPS as a policy tool has clear drawbacks and still poses numerous obstacles to Venezuelans seeking legal status in the United States:
- TPS, as the name suggests, is temporary in nature. While the TPS designation for Venezuela extends legal immigration status to Venezuelan nationals through September 2022, this statute will need to be renewed and eligible Venezuelans will have to re-apply for TPS upon this expiration date. Additionally, temporary measures such as TPS operate under the assumption that the driving factor behind the displacement is temporary and can be resolved in a matter of 1-2 years. Even if there were a political transition in Venezuela tomorrow, it would likely be years until the economic and humanitarian crisis fueling displacement abated—and even still, there is no guarantee that those who have come to the U.S. in that time would necessarily return.
- Work authorization is not guaranteed for TPS holders. While a TPS designation provides the opportunity for Venezuelan nationals to apply for work authorization, this is not a given, potentially leaving many legal residents unemployed or working in the informal sector. As documented in a 2020 study by the Center for Global Development, access to the formal labor market is essential for the socioeconomic integration of migrants and refugees into their host communities. Those who are eligible for TPS must separately file for work authorization through U.S. Citizenship and Immigration Services, where they may face additional obstacles in obtaining the right to work.
- Not only is work authorization not guaranteed, it is expensive to obtain. For those aged 14 to 65, the fee to apply for work authorization in the United States is $410, bringing the overall cost of applying for TPS, work authorization, and subsequent biometric services to as much as $545 for a single individual. While applicants are able to submit a request to waive this fee, this may prolong the application and approval process. These obstacles to obtaining work authorization may prevent Venezuelans from integrating into the formal economy and, ultimately, into their host communities.
- TPS is only available to those who came to the United States before March 8, 2021. Senior White House officials have clarified that TPS will only be available to those who are able to demonstrate continuous residence in the United States as of March 8, meaning that Venezuelans who arrive in the U.S. after this date are excluded from the measure. This extends temporary legal status to the more than 300,000 Venezuelans who are already in the U.S., but offers no support to those who continue to flee Venezuela as the situation on the ground deteriorates.
- TPS does not offer a path to citizenship or permanent residency in the United States. While TPS provides temporary legal residency, it does not provide a migrant with a designated pathway to lawful permanent resident status, meaning that eligible individuals may be subject to detention or deportation once the designation for TPS expires or is revoked by a future administration. While the Biden administration has vowed to provide TPS holders with a path to citizenship through “legislative economic reform,” the specific tools by which this policy might be implemented is unclear. Additionally, it remains unclear if a path to citizenship under this plan would be available to all TPS holders, or just those who have resided in the United States for a certain number of years.
The U.S. TPS designation is also significant when considering the regional context. The move from the Biden administration comes just one week after Colombian President Ivan Duque signed a decree providing a temporary regular status to Venezuelans in the country for a period of 10 years, so long as they participate in a registration process, during which they can obtain work authorization. This is an important announcement that, if implemented fully, could benefit the 54% of Venezuelans in Colombia that lack regular status. It remains to be seen whether measures to provide temporary status to Venezuelans in Colombia and the United States are the beginning of a broader regional trend to extend humanitarian protections to Venezuelan migrants and refugees.