With the designation of temporary protected status, or TPS, to Ukrainians by the Biden administration, familiar debates about the ethical responsibilities of the U.S. in the face of war resurfaced. On one side, activists and a bipartisan coalition argued that it would be morally untenable to send innocent people back to a war-riven country. On the other side, conservatives warned that this designation would open the way to potentially endless renewals, allowing Ukrainians to stay in the country for an unlimited amount of time.
But both sides miss the bigger question of whether TPS is an adequate legal mechanism of protection in the first place. And they miss the fact that the U.S. government designed TPS to selectively limit its responsibility toward unprotected populations.
TPS was created as part of the Immigration Act of 1990 to offer protection to individuals from countries facing war, environmental disasters, epidemics and other temporary disruptions. The program provides individuals who are already physically present in U.S. territory by the time of designation window a stay of deportation and the right to work for a period of six to 18 months, subject to renewal.
Activists organized in favor of the TPS designation when President Ronald Reagan refused to grant extended voluntary departure, or EVD, a similar temporary protection mechanism with less legislative oversight, to people fleeing oppression from the U.S.-backed regime in El Salvador in 1987. Congress created TPS as a humanitarian protection that would prevent countries in crisis from receiving waves of deportees that they could not handle.
But it also assured that it would protect only “deserving” individuals who would work hard and have a clean record, while ensuring that they would not be eligible for public assistance by virtue of the status or be provided with a path to permanent residency. TPS, like other examples in U.S. legal history, privileges “deserving” individuals as part of an alleged attempt to go beyond race and discrimination in immigration policies.
Essentially, the U.S. created a legal mechanism meant to disincentivize both the movement and permanence of populations in search of protection, while deferring and deflecting Washington’s responsibility for political instability first in Latin America and the Caribbean and then throughout the globe.
The program is also ill-equipped to address the needs of Ukrainian refugees. For example, it might be used to bar access to the more advantageous refugee status. TPS is often considered no more than a complementary mechanism of protection to refugee status.
Refugees are considered individuals who crossed a border because of a well-founded fear of being persecuted based on race, religion, nationality, social group membership or political opinion. By addressing “emergency” situations, the TPS can quickly offer a “blanket” protection mechanism to all individuals from a designated country without lengthy adjudication processes, tackling situations not covered by the refugee status provisions.
However, the TPS program does so at a price. Not only do TPS recipients lack access to the rights enjoyed by refugees such as more comprehensive access to financial aid and a path to permanent residency, but they also face more intensive surveillance. While both the TPS and refugee categories were constructed to weed out “criminals” and “unworthy individuals,” legislators were even more strict in conferring rights through TPS because they had the “illegal” migrant in mind, which in practical terms is the only group of people who stand to benefit from the limited protection offered by the TPS program.
Because the displacement of Ukrainians is related to war, which is not explicitly mentioned in the refugee definition, some Ukrainians might find it more difficult to access the refugee status since it can be alleged that they already have protection through TPS.
An emphasis on TPS also risks establishing a hierarchy between Ukrainians who were already present in U.S. territory and receive TPS and Ukrainians who arrive later and may potentially have easier access to refugee status. These groups could receive different kinds of treatment, even though a case could be made that they are displaced for the same reason.
Activists and scholars also have warned against granting TPS to Ukrainians at the expense of other groups, pointing out how other racial groups have had more difficulty accessing TPS. Others say that granting TPS to Ukrainians will help draw more attention to the need to reform the program.
While TPS is better than nothing, it should be the first of many U.S. policies adopted to protect Ukrainians and others in addition to increasing the numbers of individuals eligible to attain refugee status.
Rather than reflecting the unique conditions of displacement and need, TPS lifts up a mirror and reflects back to us the limits of U.S. responsibility.
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ABOUT THE WRITER
Nathalia Justo is a doctoral candidate in political science at Northwestern University. Her research focuses on the limits of programs such as TPS, the Deferred Action for Childhood Arrivals program and others.
