In September, President Joe Biden’s administration extended Temporary Protected Status (TPS) for nearly half a million recent migrants from Venezuela.
The designation grants lawful legal status to these Venezuelans who arrived in the U.S. by July 31, under the president’s authority to protect migrants escaping disaster or unrest in 18-month increments. Practically, it makes these migrants legally eligible for employment authorization documents — work permits.
The Venezuelan community in Las Vegas rejoiced at the news, meant to help cities with large influxes of migrants manage new arrivals by creating a legal pathway for them to get jobs.
But what TPS extension did not do is address challenges for a much larger population — undocumented immigrants.
The Migration Policy Institute, a nonpartisan think tank, estimates that there are nearly 170,000 undocumented immigrants in Nevada — and that 70 percent of them have lived in the U.S. for at least a decade. Although lawful presence and work status are two different things — a work permit is not an immigration visa that authorizes someone’s legal presence in the country — millions of undocumented people in the U.S., mostly by virtue of their unauthorized status, are not eligible to legally work.
“Once you’re undocumented, you are basically stuck being undocumented,” said Las Vegas immigration attorney Kathia Quiros. “Even if you have a special talent, or even if you have a U.S. citizen child or wife or husband or parents, there’s very little you can do to change your status.”
Work permits, or EADs, are different from visas. It’s a form that proves someone is authorized to work because they do not have permanent residency, like a green card. Eligible groups include asylees, parolees, refugees, those with TPS or DACA status, spouses of certain visa holders, nonimmigrants on student visas or those with pending asylum or permanent residence applications, and does not typically require an employer sponsorship. Holders can present their EAD to prospective employers, making them critical for those looking for legal work.
Undocumented people nonetheless participate in the workforce, albeit in cash-only or under-the-table situations that can make them more susceptible to workplace abuse. According to a Pew Research report based on 2021 data, Nevada has the nation’s highest percentage of unauthorized workers at 9 percent.
The lack of work permits for undocumented immigrants has long frustrated both immigration advocates and business groups, particularly in industries experiencing post-pandemic labor shortages. Those concerns were vocalized in a mid-November rally in Washington, D.C. advocating for Biden to use his executive authority to expand access to work permits to a greater share of the nation’s undocumented population, including those who have, like the majority of Nevadans, been in the U.S. for years.
“It would be an incredible benefit both to people and families in Nevada and probably to the economy if people could work legally,” said Michael Kagan, the director of the UNLV Immigration Clinic. “Because people are working, and no one should pretend otherwise.”
Though a bevy of proposals — expanding TPS to more nations and issuing executive orders to give more categories of undocumented immigrants work eligibility — have been floated by immigration advocates, any new executive actions beyond TPS are likely to be challenged in court. Even so, business leaders, immigrants and politicians are urging the administration to do more.
“The administration absolutely can do that,” Sen. Catherine Cortez Masto (D-NV) said in an interview of proposals to offer work permits to undocumented immigrants, adding that she has pushed the president and various Cabinet secretaries on the issue. “They have the administrative authority to do that. Instead of waiting for Congress to act, they can act now.”
Options on the table
The authority for Biden’s TPS extension to Venezuelans comes from a 1990 law authorizing presidents to grant short-term legal status to migrants unable to return to their home countries because of a political or environmental catastrophe, based on nationality. Homeland Security Secretary Alejandro Mayorkas has used this power numerous times since 2021 — including Venezuelans, the administration has granted TPS status to people from Myanmar, Ukraine, Afghanistan and Ethiopia.
Migrants who arrived before the TPS issuance date can apply for work permits. On that front, Cortez Masto and Sen. Jacky Rosen (D-NV) have also publicly called on the Biden administration to redesignate TPS status for people from El Salvador and Honduras, establishing a new temporary time period in which TPS holders from those countries can still legally reside in the U.S. The administration ended up extending both through 2025.
The American Business Immigration Coalition (ABIC), an advocacy group representing more than 1,200 businesses that advocate for immigration reform, is pushing the administration to adopt broader TPS expansion as well as the issuance of work permits for undocumented immigrants. Without action, business leaders fear ongoing worker shortages could cripple local economies — including in key sectors such as construction and renewable energy that are tentpoles of Biden’s economic policy.
“We’re due to see an entire generation of elder tradesmen hit retirement age en masse and we are nowhere close to meeting the need for their replacement,” Donnie Gibson, the CEO of Las Vegas general contracting business Civil Werx and a former Republican state Assembly candidate, said in an August virtual press conference hosted by the coalition. ”It’s time we recognized other talent pools, and there is a great argument for employing a motivated immigrant population.”
In an interview, ABIC political director James O’Neill said he hears constant concerns from business owners about the difficulties of attracting and retaining workers. The Chamber of Commerce estimates there are 9.5 million job openings and only 6.5 million unemployed people in the U.S., meaning a gap of 3 million jobs exists and, O’Neill argues, requires undocumented workers to help fill. (Unemployment figures likely include some undocumented immigrants.)
ABIC is suggesting Biden use his executive authority to authorize work permits for various categories of the undocumented population — for example, those who are married to U.S. citizens, “Dreamers” or undocumented immigrants brought to the country as children who do not have legal status or agricultural workers.
Kagan said the authority to grant work authorization to various categories of undocumented immigrants would look a lot like DACA, or Deferred Action for Childhood Arrivals, which was originally a 2012 executive order issued by the Obama administration. The order carved out a category of undocumented immigrants — those brought to the United States while under 16 and who were still under 31 by the date of the order — whose deportation would be deferred in renewable two-year periods. DACA recipients were also made eligible for work permits.
An attempt to expand DACA was struck down and the program has been legally imperiled for years. Kagan said DACA’s legal vulnerabilities owe to its provisions granting recipients lawful presence — separate from the part granting them the legal right to work.
“Employment authorization and unlawful presence are actually distinct,” Kagan said. “So you could have a more limited program that just didn’t change people’s immigration status at all, but just gave them employment authorization.”
Under such a program, Kagan said he could envision various categories of eligibility that would make a major difference for immigrants in Las Vegas, including people whose children are U.S. citizens or who have lived in the U.S. for 10 years without a criminal record.
While legally possible, he doubts such an order would actually occur. Realistically, he said people would be hesitant to register for a work permit without the promise of lawful presence. And there are political considerations as well.
“I haven’t really seen or heard much serious interest in doing this sort of thing right now, before the election,” he said.
Quiros agreed that Biden taking immediate action — particularly with DACA’s fate in legal jeopardy — is unlikely.
“Until we get to the Supreme Court and the Supreme Court decides whether the president had the DACA authority, I don’t think President Biden will even try to consider something like that,” she said.
When asked, a DHS official pointed to a number of actions the department has taken thus far, including the TPS expansion, doing outreach to parolees about work eligibility and expanding efforts to process applications.
Other solutions
In May, Cortez Masto led a group of five senators — three other Latino Democrats and Judiciary chair Sen. Dick Durbin (D-IL) — in a letter calling on the Department of Homeland Security to streamline one of the only legal avenues long-term non-citizens have to access work permits.
Under a 1996 law, the only way an undocumented immigrant can receive “cancellation of removal” status — eliminating deportation threat — is to have been in the U.S. for at least a decade and to prove that their deportation would present an “extreme hardship” to a U.S. citizen, like a spouse or child. It can only be granted to 4,000 people per year.
Individuals can typically only file for cancellation of removal when legal proceedings have been initiated against them. Cortez Masto wants U.S. Citizenship and Immigration Services (USCIS) to issue a rule allowing people to “affirmatively request” a USCIS review to determine if they are eligible for cancellation of removal, rather than having to go through immigration courts. Doing so, she wrote, could make one of the only pathways to lawful permanent resident status more accessible.
“They can get their work permits while they wait,” Cortez Masto said in an interview. “It takes it out of the immigration courts, and it streamlines it so that we’re moving this process much faster and taking away a lot of bureaucracy around it.”
Advocates agree that the cost of inaction is high.
While Nevada is friendly to immigrants, Quiros cautioned that continued lack of government action could harm Nevada’s immigrant labor-reliant economy.
Kagan said the UNLV Immigration Clinic represents recent arrivals, who often have “harrowing stories and very compelling needs.” But the undocumented population in Nevada is much larger.
“It’s mostly people who have long-standing residence, who have kids who’ve grown up here, who have been living here, essentially waiting for immigration reform, literally for decades,” he said.
