U.S.' Temporary Protected Status for Myanmar

In March 2024, the U.S. State Department announced that it would extend and redesignate (i.e. adjust the justification for) Temporary Protected Status (TPS) within the U.S. to Myanmar nationals fleeing the unstable conditions in their country. This move is only the latest in a series of geopolitical indicators of the deteriorating situation for India’s eastern neighbour, and an example of the types of legal status that are used by receiving countries to admit a group of fleeing people require international protection without going through the long and arduous process of applying for refugee status through an asylum process.

On this occasion, given the growing interest of Indian civil society in evaluating potential legal mechanisms and frameworks for vulnerable populations seeking international protection within India, the extension of TPS status for Myanmar nationals in the U.S. provides an opportunity to look at the similarities and differences between international refugee law and common features of secondary legal provisions such as U.S. TPS status. Understanding the details of international protection laws are essential if, and when, India moves forward with building or amending current legal mechanisms domestically.

TPS and asylum (the process for seeking status as a refugee) are both provisions under the U.S. Immigration and Nationality Act that aim to provide humanitarian legal status to people looking for safety in the U.S. outside of their home countries.[1] U.S. asylum law is based on the United Nations’ 1951 Refugee Convention and 1967 additional protocol[2], to which the U.S. became a party in 1968.[3] TPS was adopted under U.S. law in 1990 to allow people from countries with unsafe conditions to temporarily live and work inside the U.S.[4] While TPS provisions and refugee law are similar in that they share common overall intent and some similar features related to legal rights, there are also key differences in eligibility, duration, and ease of access to rights like long-term residency, work, or travel.

Temporary Protected Status vs. Asylum/Refugee Status: Similarities and Differences

	Temporary Protected Status	Asylum/Refugee Status
Similarities	Aim to address protection needs of forcibly displaced people fleeing unsafe conditions
	Regularised legal status for applicants that prevents detention, removal, or deportation
	Provision of legal rights for residency and work authorization
Differences	Authorised for entire groups of people	Evaluated on individual case-by-case basis
	Temporary (no path to permanent residency)	Permanent (path to permanent residency)
	Allows travel abroad, including to the home country	Travel abroad is discouraged, to home country is prohibited
	Includes immediate access to work authorisation	Work permit is granted after the asylum request is approved or after 365 days
	Timeframe and deadlines for applications are decided by the U.S. Congress for each nationality	Applications must be submitted within a year of arrival in the U.S., but is permanent if approved
	Faster process	Longer processing time
	Has been applied to climate disasters	Not applicable to climate disasters as a grounds for displacement

For instance, both options have the same purpose: to provide protective legal status to people fleeing conditions in their home country deemed by the receiving country as “unsafe” under the definitions of the particular law being applied. Both allow regularised legal status to applicants who can lawfully remain in the host country while their TPS or asylum application is still being processed, legally protecting them from arbitrary detention, removal, or deportation. And both provide legal rights to members of forcibly displaced communities to live and work inside the host country.

The differences are in the details of how each is implemented. First, in the case of refugee status, it is an individual being considered. Whether someone is or is not deemed a refugee is evaluated on a case-by-case basis by the receiving country (or in some cases by the UN where the host country does not have a designated national agency), with an analysis of whether or not that individual meets every element of the detailed refugee definition.[5]

By contrast, TPS in the U.S. (or similar humanitarian visas in other countries) is authorised as a group status instead of for the individual, where an entire nationality is recognised based on the insecure situations in their country of origin related to a specific event or circumstance. In this way, TPS is somewhat similar to India’s recognition in the past of specific communities like Tibetans after 1959, and Bangaladeshis in the lead up to the 1971 war, who sought safety in India after fleeing instability in their countries of origin.[6]

Second, when an asylum-seeker receives a positive determination which grants refugee status, it is a permanent status. This means that refugee status provides a path to permanent residency (a “green card”) and eventually to citizenship. TPS status is temporary and can be revoked at any time by Congress. TPS does not provide automatic paths to either a green card or citizenship, and TPS holders must apply separately for permanent residency if they are eligible under another category that allows access to a green card.

Third, TPS allows travel outside the host country through a permit known as “advanced parole”, which allows TPS status holders to travel abroad, including to their home country, and lawfully return to the U.S. Asylum applicants can apply for this same travel permit, but it is discouraged. They are usually advised to remain in the U.S. while their application is being processed, which can sometimes take years. Asylum is also based on the assumption that the individual applicant is afraid of returning to their home country due to threat of individual persecution, so returning to their home country, even temporarily, would put their status in jeopardy.

Fourth, TPS applicants have access to immediate work authorisation because they can apply for a work permit at the same time as their TPS application. Asylum seekers must wait to apply for a work permit until U.S. Citizenship & Immigration Services approve their application or 365 days pass with no decision, whichever occurs first. This is an extremely important provision as formal work allows individuals to set up businesses, contribute to the host country’s economy, and reduces or eliminates dependence on assistance to cover basic needs.

Fifth, the time frame for application of TPS is different. Asylum applicants must apply within one year of arrival in the U.S., unless a new change in circumstances justifies extending the timeframe. TPS has time limits for the first-time application and subsequent renewals, although the deadlines vary by nationality. Status for each nationality under TPS is also time-limited by Congress. Status for any particular nationality can also be extended by Congress, even multiple times, but this is subject to political will and prioritisation.

Six, TPS is usually the faster process because it provides recognition at a group level, whereas asylum cases are reviewed separately for each person, so the reviews usually take longer and have a longer backlog. Processing times on decisions on legal status matter because longer processing times mean longer waits for individuals to move ahead with reestablishing their lives.

Finally, a word about climate-induced displacement. To date, countries have been hesitant to apply the refugee definition to people displaced principally by climate-induced forced migration, in large part because a key part of the refugee definition is tied to the risk of persecution based on an unchangeable characteristic about the applicant (nationality, race, family ties, etc.), or a characteristic they should not have to change (religion, political opinion, etc.).[7] On the other hand, TPS has been used to extend protections to victims of natural disasters on multiple occasions, such as to Nicaraguans and Hondurans after Hurricane Mitch in 1998, or to Haitians after the devastating 7.0 magnitude earthquake in 2010.

Myanmar’s neighbours recognise that the country’s complex situation within its borders affects the whole region. Some intellectuals in India have called for exploring a more standardised legal mechanism for recognising protected classes of foreigners in Indian territory[8]. In this context, the nuances of legal features applied to people fleeing Myanmar provide a start to a serious discussion on the subject.

India has some options: adopting the provisions of the 1951 Refugee Convention is one; using other legal mechanisms (with features like group-level recognition, consideration of climate factors, streamlined work authorisation, flexibility to travel, etc.) is another. To some extent, some provisions under the Citizenship Amendment Act (CAA) attempt to provide group-level recognition and legal status for specified communities in a fashion similar to TPS. There are several examples available internationally pointing to how such policies have developed in other settings, which offer comparisons to better understand which are best suited to the Indian context.

Purvi Patel is International Affairs Fellow, Council on Foreign Relations and Visiting Fellow, Gateway House.

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References:

[1] Petts, J. ‘TPS vs. Asylum: How Do They Compare?’ Immigrationhelp.org. https://www.uscis.gov/newsroom/news-releases/secretary-mayorkas-announces-extension-and-redesignation-of-burma-myanmar-for-temporary-protected

[2] In the aftermath of World War II, the United Nations formalized a definition of the word refugee in the 1951 Refugee Convention and additional 1967 Protocol Relating to the Status of Refugees. The original convention applied to people fleeing Europe for events related to WWII. The 1967 protocol extended the refugee definition to other geographic regions and to situations unrelated to WWII.

[3] ‘An Overview of U.S. Refugee Law and Policy’. American Immigration Council, 21 Sept 2021, modified 22 Oct 2022. https://www.americanimmigrationcouncil.org/research/overview-us-refugee-law-and-policy

[4] Roy, D. and Klobucista, C. ‘What Is Temporary Protected Status?’ Council on Foreign Relations, last updated 21 Sept 2023. https://www.cfr.org/backgrounder/what-temporary-protected-status

[5] ‘Refugee definition’. UNHCR Emergency Handbook, last updated 1 March 2019. https://emergency.unhcr.org/protection/legal-framework/refugee-definition

[6] India has provided refuge on separate occasions to Pakistanis, Bangladeshis, Sri Lankans, Tibetans, Afghans, and Chin and Rohingya from Myanmar. See Daniel P. Sullivan and Priyali Sur, ‘Shadow of Refuge: Rohingya Refugees in India,’ Refugees International, May 18, 2023, https://www.refugeesinternational.org/reports-briefs/shadow-of-refuge-rohingya-refugees-in-india/.

[7] Patel, P. ‘Navigating terminological dilemmas on “Climate Refugees”’. Gateway House, 7 Dec 2023. https://www.gatewayhouse.in/navigating-terminological-dilemmas-climate-refugees/

[8] Jaising, I. ‘Welcome All: Instead of CAA, government would do better to sign Geneva Convention on Refugees’. Indian Express, Editorials page, 13 March 2024. https://indianexpress.com/article/opinion/columns/indira-jasing-caa-rules-against-equality-federalism-constitution-9210384/