On May 22, the Secretary of Homeland Security Alejandro Mayorkas designated Haiti for Temporary Protected Status (TPS) for 18 months. Mayorkas justified the decision by citing Haiti is “currently experiencing serious security concerns, social unrest, an increase in human rights abuses, crippling poverty, and lack of basic resources.” The U.S. Citizenship and Immigration Service (USCIS) estimates that 155,000 Haitian foreign nationals will be eligible to apply under this new designation.

Haiti has seen a rapid increase in violence and gang presence across the country over the past few years. Earlier this year in July, Haiti’s president, Jovenel Moise, was assassinated in his residence by a group of assailants. Shortly after the president was declared dead, the interim prime minister, Claude Joseph, declared a “state of siege” and put the country under martial law.

Then, in mid-October, 17 missionaries and their families from the Christian Aid Ministries, an Ohio-based aid group, were kidnapped by a gang in the capital, Port-au-Prince. Gangs currently control roughly half of the city

TPS is a pathway for eligible foreign nationals to apply for legal entry and temporary residence status in the United States. The Secretary of Homeland Security has the authority to designate and extend TPS for certain nationalities, usually when a country is found to be under “extraordinary and temporary conditions” such as a natural disaster or political crisis. Those who are eligible to apply must have “last habitually resided in the designated foreign state” before arriving in the United States.

The Department of Homeland Security establishes both an application period and a designation period for each country designated. The application period creates a deadline for which eligible foreign nationals must submit Form I-821, Application for Temporary Protected Status. The designation period is the time those who received an approved TPS are allowed to stay in the United States and then apply for work authorization. When the designation period ends, beneficiaries must either leave the United States or return to the same immigration status they had before the TPS designation.

Currently, the Department of Homeland Security has 12 designated countries eligible for TPS; six of those have online filing still available. Somalia and Yemen were recently extended and redesignated in July.

Haiti’s most recent TPS designation only applies to Haitian foreign nationals who are in the United States as of May 21, 2021. Those who wish to come to the United States after this deadline, specifically those trying to escape after the most recent political upheavals, will not qualify for the designation and could even be repatriated to Haiti.

Haitians who were already in the United States at the deadline must have last habitually resided in their designated home country. If Haitian foreign nationals were living in a different country before coming to the United States, they will not qualify for the protected status.

To apply, Haitians must file the Form I-821 Application for Temporary Protected Status along with evidence of nationality, date of entry to the United States, and relevant proof to show continuous residence since the date of entry. For first-time applicants, the fees vary depending on the applicant’s age and whether or not they are requesting employment authorization.

In 2010, former Secretary of Homeland Security Janet Napolitano designated Haiti for TPS specifically due to the effects of a 7.0-magnitude earthquake and its two large aftershocks that hit the island of Hispaniola impacting both the Dominican Republic and Haiti on January 12, 2010.

Haiti was devastated by the natural disaster due to the lack of national building codes and adequate building reinforcements. Failed electric power systems made it severely difficult for international organizations to provide medical aid, food, and water to the country.

In 2011 the designation for Haiti was expanded and redesignated, allowing more Haitians present in the United States at the time to apply for TPS. Haiti’s TPS designation was terminated in January 2018 after being extended several additional times. However, that termination is currently being challenged in several separate lawsuits that have led to a court injunction that requires DHS to continue TPS for those Haitian migrants until a court decision is ordered.

Secretary Mayorkas acknowledged in his recent designation that the 2010 earthquake, which caused Haitian migrants to be designated under TPS for the first time, still negatively impacted the country and helped exacerbate the current issues of today.

The current TPS designation is not applicable for any Haitian currently trying to migrate to the United States. However, President Biden’s administration has other options to assist Haitians still trying to find protection from their country’s current state of siege. Deferred enforced departure could be enacted by the President to enforce a discretionary administrative stay of removal for Haitian foreign nationals. This action is a direct constitutional power of the President who can also set the eligibility requirements. Three countries are currently covered by this type of action, including Liberia, Venezuela, and the Chinese special administrative region Hong Kong.