Caracas Chronicles

We waited and waited, and former President Trump never managed to get the Temporary Protected Status (or TPS) approved, a measure that would have provided, albeit temporarily, a regular immigration option for Venezuelans in the U.S. without a visa or residency permit. 

The night before he was to leave the Office of the U.S. Presidency, though, Trump signed an Administrative Memorandum with instructions for the Secretary of Homeland Security to take appropriate measures to defer for 18 months the removal of Venezuelans, or aliens without a nationality, who last resided in Venezuela, and who were in the country as of January 20th, 2021.

We were all stunned at the decision, and relieved to have an option, at least, to alleviate the suffering and anxiety of so many Venezuelans in irregular status in the U.S.; a pathway was finally provided, an avenue that would reduce the number of Venezuelans without a work permit, reduce instances of employer abuse, reduce the uncertainty of being caught by USCIS, and the fear of being sent back to a ruined home country.

But is this the same as a TPS? Is it better? Does this mean that all Venezuelans can regularize their status, regardless of other immigration procedures they might have ongoing? Since when is this valid? What happens if President Biden approves the TPS, as promised?

To help us answer some of these questions, here are the answers Marcia Guevara, a Venezuelan-American lawyer who practices Law in NY, gave us.

What’s a Deferred Enforced Departure (DED)? Is it the same as a Temporary Protected Status (TPS)? How are they similar?

DED is a benefit that allows certain foreign nationals from designated countries and regions facing political or civic conflict or disaster to live and work in the United States. This form of relief from removal provides an administrative stay of deportation for a specific period of time. It’s not the same as TPS; the main difference is that DED is a temporary protection from deportation while TPS is a temporary immigration benefit. Deferred Enforced Departure and Temporary Protected Status allow foreigners the opportunity to work, but the U.S. President has the constitutional power to designate DEDs, while the power to designate a TPS rests with the Secretary of Homeland Security. 

Who’s eligible for this benefit? Can all Venezuelans in American soil have access to it? 

Venezuelan citizens or foreigners without nationality who last habitually resided in Venezuela and  who are present in the United States as of January 20, 2021, are eligible for DED. The  following categories of Venezuelans are excluded:

1. Those who have voluntarily returned to Venezuela or their country of last habitual residence;
2. Those who have not continuously resided in the United States since January 20th, 2021;
3. Those who  might be spying, engaging in terrorism or are generally inadmissible under section 212(a)(3) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(3)), or removable under deportability statutes under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));
4. Those who have been convicted of a felony or two or more misdemeanors in the United States, or who meet the criteria about asylum eligibility set forth in section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A));
5. Those who were deported, excluded, or removed prior to January 20th, 2021;
6. Those who are subject to extradition;
7. Those whose presence in the United States has been determined by the Secretary of Homeland Security to not be in the interest of the United States or to present a danger to public safety;
8. Those whose presence in the United States gives the Secretary of State reasonable grounds to believe in potentially serious adverse foreign policy consequences for the United States.

Does DED grant a legal status to those eligible Venezuelans? 

No. The DED doesn’t grant legal status, only protection against deportation. 

Can people travel if they opt for the DED? 

Yes, as long as the person is granted an advance parole before leaving the United States.

Can people apply for a work permit under the DED option? 

Yes, foreigners who are eligible for DED can apply for an Employment Authorization Document. 

Is the DED already valid, and how long is it going to last for? 

On January 19th, 2021, President Donald J. Trump issued the Memorandum on Deferred Enforced Departure for Certain Venezuelans. The DED defers the removal of foreigners for 18 months.

***

This is, indeed, a positive development for Venezuelan migrants in the United States. No, the DED won’t grant you legal status, nor does it provide a legal document confirming regular status, and it’s not a pathway to citizenship… but it gives Venezuelans a break and protects them from ending in an immigration center, or back to Venezuela which, for those affected, it means a lot. The TPS option would be a natural progression now, and it’s fair to expect an approval by President Biden during the first 100 days of his administration. 

It has already been 28 days since he took office. Let’s hope that TPS comes within the next 76.

* Opinions are personal. They do not represent those of the Organization of American States (OAS).