Who has the power to designate new countries for TPS (temporary protected status)?

Question

VOA news on January 17, 2019:

Amid a deepening crisis and mass exodus from Venezuela, bipartisan legislation was unveiled Thursday to provide temporary protected status (TPS) to Venezuelan nationals in the United States.

The Venezuela TPS Act of 2019, introduced by U.S. Representatives Darren Soto (D-FL) and Mario Diaz-Balart (R-FL), cites "an unprecedented economic, humanitarian, security, and refugee crisis."

TPS designation is granted by the Department of Homeland Security (DHS) to citizens of certain countries suffering from ongoing armed conflict, environmental disasters, or "other extraordinary and temporary conditions."

Also

TPS was established by the U.S. Congress in 1990 as a protective immigration status accorded to foreign nationals from countries affected by conflict, natural disaster or other extraordinary conditions that make safe return to their home countries impossible, including when a country cannot accept the return of its nationals.

DHS is required to extend or terminate TPS country designations 60 days before the status expires. In the event TPS is extended, DHS will also determine whether or not to re-designate it, so that individuals who arrived after the prior designation date may also be eligible to apply for the status. When TPS is extended for a country, nationals with TPS must re-register for the status.

TPS has historically been extended and re-designated in accordance with the law under both Republican and Democratic administrations alike — until now.

So, this is somewhat confusing to me: the DHS clearly has power to redesignate, but does DHS have the power to designate for TPS a new country by themselves? If not, who can do that, only Congress? Or is Congress trying to force the hands of the administration with the Venezuelan business?

Answer 1

The executive definitely has this power. With exceptions of Salvadorans, who were granted the status by the initial law that also established the TPS, the rest of the designations were made by the executive:

TPS is a blanket form of humanitarian relief. It is the statutory embodiment of safe haven for foreign nationals within the United States who may not meet the legal definition of refugee or asylee but are nonetheless fleeing—or reluctant to return to—potentially dangerous situations. TPS was established by Congress as part of the Immigration Act of 1990 (P.L. 101-649). The statute gives the Secretary of the Department of Homeland Security (DHS), in consultation with other government agencies (most notably the Department of State), the authority to designate a country for TPS under one or more of the following conditions: ongoing armed conflict in a foreign state that poses a serious threat to personal safety; a foreign state request for TPS because it temporarily cannot handle the return of its nationals due to an environmental disaster; or extraordinary and temporary conditions in a foreign state that prevent its nationals from safely returning. A foreign state may not be designated for TPS if the Secretary of DHS finds that allowing its nationals to temporarily stay in the United States is against the U.S. national interest. [the latter according to INA §244(b)(1).]

[footnote:] When TPS was enacted in 1990, most immigration-related functions, including designating countries for TPS, fell under the authority of the Attorney General. With the creation of the Department of Homeland Security in 2002 (P.L. 107-296), most of the Attorney General’s immigration-related authority transferred to the Secretary of DHS as of March 1, 2003.

[...]

In 1990, when Congress enacted the TPS statute, it also granted TPS for 18 months to Salvadoran nationals who were residing in the United States. Since then, the Attorney General (and, later, the Secretary of DHS), in consultation with the State Department, granted and subsequently terminated TPS for foreign nationals in the United States from the following countries: Angola, Bosnia-Herzegovina, Burundi, Guinea, Lebanon, Liberia, the Kosovo Province of Serbia, Kuwait, Rwanda, and Sierra Leone.

-- Congressional Research Service, Temporary Protected Status: Overview and Current Issues, Updated March 29, 2019