Temporary Protected Status has allowed immigrants from countries facing war, natural disasters and other dangerous conditions to live and work legally in the United States. But a recent Supreme Court ruling shows TPS can be given and taken away.
The Supreme Court recently handed down a ruling allowing the administration to revoke humanitarian protections for Somalian, Haitian, Ethiopian and Syrian nationals, as well as several other African nations.
The cases lay bare a fundamental clash in the U.S. immigration system: being legally allowed to live and work in the United States is not necessarily the same as having a path to permanent residency or citizenship.
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Katie Meyer, director of the Immigration Law Clinic at Washington University in St. Louis and a professor of practice, said understanding the citizenship process requires first understanding the different immigration statuses people can hold.
“Before we can talk about citizenship, we really need to talk about the various types of statuses a non-citizen who’s in the U.S. might hold,” Meyer said.
Four categories of nonimmigrant status
Meyer generally divides noncitizens into four broad categories.
The first is nonimmigrant visa holders, including tourists, students, medical workers and temporary or seasonal employees. Most of those visas are not designed to lead to permanent residency or citizenship.
The second category includes immigrants seeking lawful permanent residence, commonly known as green card holders. They generally qualify through family relationships, employment or the diversity visa lottery.
The third category includes refugees and others who have been granted asylum. Those immigrants can eventually apply for permanent residence and citizenship after meeting additional requirements.
The fourth includes people with other immigration protections or documentation, including those with Temporary Protected Status, recipients of Deferred Action for Childhood Arrivals and certain victims of crimes who qualify for special visas.
TPS provides temporary protection from deportation and allows eligible recipients to work legally in the United States. But the status is temporary by design and does not independently provide a path to permanent residence or citizenship.
For people seeking permanent immigration through the traditional visa system, the process generally starts with a petition.
In most family-based cases, the person seeking to immigrate cannot petition for themselves. A qualifying U.S. citizen family member such as a spouse, parent, child or, in limited circumstances, sibling must file the petition.
Congress limits the number of immigrant visas available in many categories, although spouses and unmarried children under 21 of U.S. citizens are generally exempt from those numerical limits.
Employment-based immigration requires an employer to demonstrate that a position remains available and that the prospective immigrant continues to meet the qualifications for the job.
Applicants also must establish that they are not legally inadmissible to the United States.
That can involve certain criminal offenses, previous immigration violations, public health concerns or, in some circumstances, a determination that the person could become a public charge.
If an immigrant visa is approved, the applicant uses it to enter the United States. Once admitted, the person becomes a lawful permanent resident. The physical green card arrives later.
“The actual green card, as we call it, will come in the mail later,” Meyer said. “But you are a lawful permanent resident once you enter on an immigrant visa.”
Only after obtaining lawful permanent residence does the citizenship clock generally start ticking.
Most permanent residents must wait five years before applying for naturalization. Certain spouses of U.S. citizens can apply after three years if they remain married to and living with their U.S. citizen spouse.
Applicants must also demonstrate basic English proficiency, pass a U.S. history and civics test, establish good moral character and agree to take an oath of allegiance.
Becoming a citizen without authorization
For immigrants who entered the country without authorization, however, the path can be significantly more difficult.
Meyer said federal law generally requires a person seeking permanent residence to have been “inspected and admitted or paroled” into the United States.
That means marriage to a U.S. citizen or having U.S. citizen children does not, by itself, make someone eligible for permanent residence if that person entered the country without permission.
In many cases, the person may have to leave the United States and apply for an immigrant visa through a U.S. consulate abroad, potentially creating additional immigration complications. The Trump administration has enforced this requirement more than other presidents.
People facing deportation can face an even higher legal hurdle.
One form of relief requires an applicant to demonstrate good moral character for 10 years and prove that deportation would cause “exceptional and extremely unusual hardship” to certain qualifying relatives.
Meyer said courts have interpreted that requirement as demanding hardship far beyond the ordinary suffering a family would experience from separation.
The complexity of the system also extends beyond the statutes Congress passes.
Federal agencies such as the Department of Homeland Security and Department of Justice can issue regulations explaining how they will interpret and enforce immigration laws. As a result, the practical application of immigration law can change significantly from one administration to another.
“You get some wide differences between how different administrations will interpret” the law, Meyer said.
For TPS recipients, those changing interpretations can have profound consequences. A person may have lived and worked legally in the United States for years while remaining only temporarily protected from deportation.
The Supreme Court’s recent ruling involving Haitian and Syrian nationals illustrates the stakes. The decision gives the Trump administration greater authority to end certain humanitarian protections and could leave people who have established lives in the United States facing the possibility of removal.
For those immigrants, the question is not necessarily how to become an American citizen.
It may first be whether they have a legal path to remain in the country long enough to become one.
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