Yesterday, Mayor Eric Adams held a press conference in City Hall to call on the federal government to give the city additional funding to deal with asylum seeker arrivals, pointing to dubious projections of billions of dollars in expenditures over the next year. The seriousness of the mayor’s fiscal projections aside, he also called once again on the Biden administration to take action to allow migrants to work as they went through their asylum processes.
The option of Temporary Protected Status
Let’s take a look at some of the options on the table here. Adams specifically referenced Temporary Protected Status a few times, saying “TPS is available for exactly these times.” It might not even be an alien concept to many New Yorkers, as thousands of people with TPS already live in the city, in some cases having held the status for decades. But Adams isn’t exactly correct that TPS is meant for these types of situations, for the simple fact that TPS, as a program, is not supposed to depend at all on circumstances inside the United States.
The status was created by Congress in 1990 specifically to be responsive to circumstances abroad, by essentially allowing the government to designate certain foreign countries as too dangerous or unstable to send people back to. The law itself lays out some examples, including armed conflict, environmental disaster, epidemic, or anything else that would create serious threats to the safety of anyone returned. People from that country who have no other status are then able to obtain protections from deportation and the all-important work authorization.
That evaluation, crucially, is supposed to be made by professional career staff in the Department of Homeland Security and presented to the president for sign-off based on the facts on the ground in that particular country. It is not supposed to be a decision primarily driven by the president or downstream from any domestic circumstances or political considerations, which could complicate any calls for the new TPS designations that seemed to just be about giving people already in the U.S. work authorization.
In fact, the Trump administration’s efforts to terminate TPS for various nationalities actually failed because federal courts agreed that the decisions were based on political ends, not the type of rigorous and impartial evaluation that’s supposed to happen. That said, Adams did call on the Biden administration to redesignate and extend already existing TPS status for countries including Venezuela, Nicaragua, El Salvador, Sudan (unfortunately a very straightforward argument since the outbreak of a bloody sectarian war there this past weekend), and other countries, which is much easier than issuing new designations.
Humanitarian parole
The way TPS works is that a designation will set a cutoff date, protecting the people who were already in the U.S. as of that date, but not those who arrived afterward. That’s why we have Venezuelan migrants with TPS — those who arrived in the country before March 9, 2021 — and thousands of more recent Venezuelan arrivals without TPS. Extensions keep the status in place for longer, but redesignations mean that the cutoff date itself gets moved, so a lot of currently ineligible people would be newly eligible. The catch is that, as its very name denotes, TPS is supposed to be temporary, just like humanitarian parole, the other, much more discretionary program that Adams is pushing the White House to expand.
As I’ve written about before, the expansion of parole programs like the ones the administration already rolled out for Venezuela, Haiti, Cuba, and Nicaragua are perhaps better than nothing, but can create some significant long-term obstacles because they are renewable but nonpermanent, and create no path to permanent residency. So, while people can enter or remain in the U.S. under some color of law, that can be taken away at any time, and simply adds to the population of people in a limbo-like semi status. They can of course still apply for asylum, but that ability runs out a year after arrival, meaning that people who rely on TPS or parole status in lieu of asylum will find that option closes quickly and they’re dependent on these completely provisional programs.
Parole is also really intended to be a somewhat case-by-case program, and using it to basically supplant traditional asylum pathways not only runs the risk of making migration inaccessible to poorer asylum seekers who can’t find financial sponsors and buy airfare to the U.S., but its legality as a broader program encompassing whole countries has already been challenged.
A fast track to work authorization
Ultimately, both programs are really about getting work authorization to asylum seekers as fast as possible, with Adams even floating the idea of Biden signing an order that would grant work authorization instantly. Unfortunately, this is legally impossible, as the law requires months-long waiting periods before an asylum seeker can even apply for work authorization, and that’s after they formally file an asylum application, which can happen months after they enter the country.
Adams is probably right that the best way to ease the city’s spending on asylum seekers is to simply allow them to work, as their general inability to secure their own housing forces the city to bear that cost, which is by far the largest in terms of its spending on migrants, and while the ideal solution here would be for Congress to act to streamline work authorizations or Biden to overhaul the refugee resettlement processes to have the bulk of humanitarian migrants arrive already with work authorizations in hand, these things are complex, unlikely to happen, and would do little for those already here anyway. That leaves TPS and parole as bad options, but perhaps the best we’re feasibly going to get in the short term.
In fretting over the impending end of Title 42 — the Trump-era restriction designed by arch-xenophobe Stephen Miller as a way to pretextually use the pandemic to expel asylum seekers without due process, which to the bafflement of many advocates has been kept in place by Biden — Adams seems to also be tacitly calling on the Biden administration to enact further restrictions on asylum. If so, either the mayor is unaware of the administration’s efforts to do just that, including via the resurrection of the Trump-era transit ban policy, or he wants Biden to go further.
That might seem like it could address some of the short-term stress of asylum arrivals in New York, but it would be another blow to the humanitarian immigration that Adams claims to want to support. Yet his approval and enthusiasm for these restrictions could provide some political cover for Biden to more fully embrace Trump’s paradigm of never-ending, severe border restrictions. Let’s hope the mayor doesn’t go this route.
