Since 1990, the executive branch has had the authority from Congress to provide Temporary Protected Status (TPS) to people already in the United States who are from countries in which an “ongoing armed conflict within the state” exists. A bipartisan group in Congress wrote a letter to the Biden administration requesting that it designate Ukraine for TPS, and then they also proposed legislation to require it to use its authority.

Finally, the administration has relented (with the full details still to be filled in). But Congress should still recognize the procedural problem with giving total discretion to the administration not to offer TPS and require it whenever there is a major armed conflict in order to permanently eliminate the problem of delayed TPS designations in those cases. Despite the TPS designation for Ukraine, other countries with serious armed conflicts, like Afghanistan and Iraq, are not being designated for TPS.

TPS would assure that perhaps as many as 28,000 Ukrainians in the United States in temporary statuses (or, in some rare cases, no status) are not forced to choose between living here illegally or having to find some way to return to the war zone. TPS provides work authorization and legal status for up 18 months at a time to people from the designated country who arrived before the designated date. The designation and status may be renewed if conditions do not sufficiently improve.

It should surprise no one that despite the clear authorization, the Department of Homeland Security (DHS) was slow to make the designation for Ukraine. Historically, the government has taken many months to designate a country for TPS following a crisis there. Half of all TPS designations took 233 days—nearly 8 months—or more to occur after the event that justified the designation, and the government failed to designate 63 percent of countries that have had at least one major armed conflict since 1990.

Under the statute, TPS can be granted in response to three broad types of crises:

  1. environmental disasters—earthquakes, floods, epidemics, etc. (which has happened 9 times);
  2. ongoing armed conflict (which has happened 13 times not including the forthcoming Ukraine designation); and
  3. other extraordinary and temporary conditions preventing people’s return (which has happened 5 times where that was the sole justification).

Table 1 shows every TPS designation (not including Ukraine) and the number of days following the justifying event before the designation occurred. The median days to designate was 277 days (over 9 months) for extraordinary conditions designations, 233 days (nearly 8 months) for armed conflicts, and 66 days (about 2 months) for environmental disasters. This means that normally, the government takes 3 times longer to designate TPS after the start of an armed conflict than it does after an environmental disaster.

The shortest period to designate for any event was 9 days, following Haiti’s 2010 earthquake. This provides that it is bureaucratically possible for an administration to respond relatively quickly when it wants to act. The Ukraine designation might be close to the same amount of time, but the details remain to be seen.

In many cases, however, the government has simply never provided TPS despite an ongoing armed conflict. The statute does not define armed conflict, but the typical definition of a war or major armed conflict is 1,000 fatalities in a year. Table 2 shows the major armed conflicts (wars) as documented in the UCDP/PRIO Armed Conflict Dataset (1991–2020) and the Armed Conflict Location & Event Data Project (2021–2022). Altogether, major conflicts with at least 1,000 fatalities in a year occurred in 40 countries, and only 15 of those countries ever received TPS, so the government failed to use its statutory authority about 63 percent of the time.

As Table 2 shows, there are 11 active major conflicts in the world, and 7 of those countries have an active TPS designation. With the Ukraine designation, 4 countries have an active major armed conflict but no TPS designation. They are:

  1. Afghanistan (Taliban takeover/​civil war);
  2. Nigeria (Boko Haram/​insurgency);
  3. Iraq (ISIS/​insurgency); and
  4. Ethiopia (Tigray insurgency).

The only additional statutory requirement for a TPS designation based on an armed conflict is that the Secretary of Homeland Security must find that “requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety.” But it is almost tautological that major armed conflicts pose a “serious threat” to those who must live there.

The government has never explained in any long-delayed TPS designation why it failed to act before it ultimately did, and it obviously has never done so in any case where it has refused to ever provide TPS. These additional designations would probably only add about 5–10 percent to the current TPS population. Perhaps in some cases, the State Department or the Department of Defense had a specific objection on foreign policy grounds to TPS. But rather than simply assuming that there were objections, Congress should require DHS to consult with these departments when any armed conflict occurs, and if they fail to report an objection within 10 days of the consultation, the country should be automatically designated for TPS.

Congress should be forward looking and assure that it doesn’t need special legislation to force the administration to fulfill the intent of the TPS law and that the administration does not wait to issue TPS in obvious cases. It should require a TPS designation for any country suffering from a major armed conflict. This is already what the TPS statute is supposed to accomplish, but there is no reason to leave it to the administrative discretion—indeed, history shows that there is every reason to remove the discretion.

Original TPS Designation Citations

65 FR 16634, Angola, (March 29, 2000); 57 FR 35604, Bosnia-Hercegovina, (August 10, 1992); 62 FR 59735, Burundi, (November 4, 1997); 63 FR 31527, Kosovo, (June 9, 1998); 56 FR 12745, Kuwait, (March 27, 1991); 56 FR 12746, Lebanon, (March 27, 1991); 56 FR 12746, Liberia, (March 27, 1991); 59 FR 29440, Rwanda, (June 7, 1994); 62 FR 59736, Sierra Leone, (November 4, 1997); 56 FR 46804, Somalia, (September 16, 1991); 62 FR 59737, Sudan, (November 4, 1997); 76 FR 63629, South Sudan, (October 13, 2011); 77 FR 19026, Syria, (March 29, 2012); 80 FR 53319, Yemen, (September 3, 2015); 66 FR 14214, El Salvador, (March 9, 2001); 75 FR 3476, Haiti, (January 21, 2010); 80 FR 36346, Nepal, (June 24, 2015); 79 FR 69511, Guinea, (November 21, 2014); 79 FR 69502, Liberia, (November 21, 2014); 79 FR 69506, Sierra Leone, (November 21, 2014); 64 FR 542, Honduras, (January 5, 1999); 64 FR 526, Nicaragua, (January 5, 1999); 62 FR 45685, Montserrat, (August 28, 1997); 86 FR 28132, Burma (Myanmar), (May 25, 2021); 64 FR 12181, Guinea-Bissau, (March 11, 1999); 86 FR 41863, Haiti, (August 3, 2021); 86 FR 13574, Venezuela, (March 9, 2021); DHS, “Secretary Mayorkas Designates Sudan,” March 2, 2022.