While criticism of Joe Biden for his promised immigration reform is beginning to emerge, his Administration and the Supreme Court have made two decisions in different directions in the space of a few weeks. But attorneys Nicolas A. Olano, of Nations Law Group, and Anna Taylor, of the Alaska Institute for Justice (AIJ), don’t consider such decisions contradictory.
First, the Department of Homeland Security and the Department of Labor issued on May 25 a “Joint Temporary Final Rule” to increase the maximum number of H-2B Visas and make available an additional 22,000 visas for temporary nonagricultural workers in 2021. The measure is intended to help U.S. businesses that may suffer irreparable harm without these additional workers.
The measure has set aside 16,000 visas for workers who have already held a visa in 2018, 2019 or 2020, and another 6,000 for Northern Triangle nationals (El Salvador, Guatemala, Honduras), who are exempt from the returning worker requirement.
Weeks later, the Supreme Court has ruled that Temporary Protected Status (TPS) beneficiaries who entered the U.S. illegally cannot apply for a green card or residency permit. The judges consider that obtaining this immigration benefit doesn’t count as a form of admission to the country and doesn’t guarantee permanent residency, unless there is an immigration reform in Congress that so decides. The immigration reform that is yet to come.
Different issues For attorney Nicolás A. Olano, of Nations Law Group and immigration specialist, “the points are not contradictory. In truth, they are two very different issues”.
“In its decision, the Supreme Court clarifies that people who entered without being inspected by immigration –through the desert, in hiding, etc…– cannot become residents even if they have TPS. Generally, a person who enters across the border illegally or inadvertently cannot become a resident through marriage or family petitions”.
“For a time, the 9th Circuit entertained the idea that obtaining TPS served as an ‘entry’ for purposes of eligibility in the residency process. This allowed people who had entered illegally to become residents after obtaining TPS”, Olano explains. “In this decision, the Supreme Court clarifies that TPS does not work that way. It is an unfortunate decision.
Especially coming from one of the most liberal members of the Court, which was unanimous in this decision. Many people who applied and are in the process, or who were going to apply for residency, after obtaining TPS, are going to have to look for other options”.
Helping Central America Regarding the H-2B visas, Olano believes that “it has to do with the effort to help Central America and, at the same time, give support to employers to fill vacancies. The previous visas ran out too quickly and the need to fill jobs continues. It’s a measure that serves in both areas because it helps Central America”.
Olano refers to Vice President Kamala Harris’ trip to Central America. In Guatemala, Harris and the Guatemalan president, Alejandro Giammattei, have closed agreements on migration, border security and development opportunities, although Harris has reiterated the warning of the US authorities, with Biden at the head, on irregular migration: “Don’t come. The U.S. will continue to follow the laws and secure the border”.
Executive and Judiciary Attorney Anna Taylor, of the Alaska Institute for Justice (AIJ), agrees with her colleague Nicolás Olano: both decisions “are not contradictory”.
“The Department of Homeland Security is part of the Executive Branch of the federal government”, says Taylor, “while the Supreme Court is part of the Judicial Branch. The branches of government have different functions and cannot necessarily be expected to work toward the same goals”.
Anna Taylor comments that AIJ “doesn’t usually work with H-2B visas, so I don’t have a well-informed opinion on this”. As for the Supreme Court’s decision, the Alaska Institute for Justice attorney believes that the Supreme Court “has closed a pathway for people with TPS to get a green card”. “For someone to get a green card through a family member”, she explains, “the immigrant has to have entered after inspection and authorization by an immigration officer. In other words, he or she must have entered legally. Previously, some circuit courts had ruled that obtaining TPS fixed legal entry. But the Supreme Court has decided that TPS does not fix illegal entry. Without legal entry, people with TPS cannot stay in the US and get their green cards through a family member”.
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