Under Biden, hope for Nepali migrants in US

In the four years of the Donald Trump administration in the United States, there have been over 400 anti-immigration executive actions. This made the role of human rights and social justice organisations like the US-based non-profit, Adhikaar, even more critical.

Their strategy was to “buy time” for a more friendly administration so there would be more space to advocate for reforms while migrants were protected from deportation. 

As Joe Biden prepares to be sworn in on 20 January, after a tumultuous few months including the storming of the US Capitol, there is hope for non-US citizens including Nepalis whose lives have been in limbo for the past few years.

Nepali Times spoke with Adhikaar’s Executive Director Pabitra Benjamin, Director of Organising and Programs Narbada Chhetri, and Campaigns and Communications Manager Prarthana Gurung about how the  Temporary Protected Status (TPS) under a Biden presidency will affect Nepalis.

Nepali Times: First off, how is Adhikaar working on TPS?

Pabitra Benjamin: Adhikaar has been around since 2005, and we describe ourselves as a ‘workers centre’ in that we focus on workers from low-income jobs, especially informal sector workers that are not unionised and do not have the same labour standards -- such as nail salon workers, domestic workers and gig workers. We work with new immigrants so worker rights and immigration rights have both been important focus areas. We also work on language and healthcare justice issues and have a reach of 10,000 Nepali speaking people from Nepal, India, Bhutan, Tibet and Burma. 

Adhikaar fought hard to get TPS status to Nepal and it required advocacy, lobbying with congressional members and coalition partners to push the Obama administration in that direction. The Nepal Embassy had sent a letter requesting for TPS status, but that is not enough. Lobbying is key.

It was important as it would give Nepalis, including undocumented workers, a legal status, allow them to visit home while also being important for rebuilding Nepal.

We have also been fighting for the renewal of TPS after the Trump administration cancelled it for many countries, including Nepal. A lot of people under the TPS status have been here for a while, so we are fighting for their permanent residency.

Prarthana Gurung: We have been pushing for permanent residency for TPS holders but it takes a couple of years at the minimum. After Trump terminated TPS we had to challenge it and buy time by filing a lawsuit to prevent deportations.

We started talking with the American Civil Liberties Union (ACLU) and other legal organizations in 2018, and did a nationwide search for plaintiffs who could represent Nepal. We filed in 2019, and we won a preliminary injunction. So even if TPS was terminated, people could not be deported while the judicial branch investigates the rationale for termination.

In September, the 9th Circuit Court backed the government’s decision not necessarily on the arguments of the case, that it was racially biased, that the Trump administration did not follow the rules and protocols, and that you cannot separate parents from their US-born children -- but on the basis that the judge in the lower-court who created the preliminary injunction did not have the authority to do so. Our lawyers appealed this decision, and for now, the timeline for TPS holders has been auto-extended till October 2021.

Narbada Chhetri: The frequent changes and uncertainty can be nerve-wracking for TPS holders because their lives are in limbo. There is a lot of uncertainty about their future but there is also hope. Every time the TPS is terminated, we have used litigation to allow them to remain legally in the US, which has helped build trust.

But more importantly, we have helped empower TPS holders to share their stories, focused on their leadership skills, empower them politically and be part of the movement. They lead the meetings with DC officials, and we are just a mediator. 

In 2019, we mobilised 300 Nepali TPS holders and in September 2020, over 100 came to DC in the midst of the pandemic to advocate as they have taken ownership of this movement. It is because they turn out to share their stories, to lobby in DC, to be a part of the movement that they are seeing they have a role in changing what happens in Congress.

Pabitra Benjamin: For Adhikaar, it is not about being their ‘saviours’, but ensuring that they have the power to change the laws and policies that directly impact them. Politically empowering the most impacted communities and working in coalition with like-minded organizations from other communities to pressure those in Congress is what creates change and how we have succeeded so far. 

Nepalis hopeful about Biden presidency, Priti Thapa

What do you think will change for TPS and other Nepali visa holders under Biden? 

Pabitra Benjamin: A big part of our litigation strategy has been to buy time to get into a more pro-immigration government. With the Biden administration and a more friendly Democrat-majority Congress, there is now more room to push our demands.

In fact, just a few days ago, Vice President-elect Kamala Harris said she wanted to introduce legislation for DACA (Deferred Action for Childhood Arrivals) and TPS recipients from day one to provide them Green Cards so we are in a wait-and-see mode. 

The other strategy is to look at a settlement of the case and see what comes out of it. From the very beginning litigation by itself was not going to give us what we wanted which is permanent residency. It is a tool to extend the timeline to fight for permanent residency. 

We have already started having meetings with the transitional team of the Biden administration and are looking towards a redesignation of all countries to maintain their TPS status.

If redesignation is not possible, we are also asking for other ways to help TPS status holders to stay in the US.

One such alternative is to get Deferred Enforced Departure (DED) that will allow those who have lost TPS status to get DED status which can be designated by the President. Redesignation requires Department of Homeland Security to do country assessments and is a long, convoluted process that involves embassies and the State Department for an 18-month extension. We are hopeful that if the redesignation happens, it will be for all TPS countries and not on a country-by-country basis.

But both these have the ultimate objective of buying time to help TPS holders win permanent residency through Congress. The President doesn’t have the power to provide permanent residency, it is up to Congress to pass the legislation which Biden would then have to sign off on.

We were involved in writing the legislation of HR-6 (American Dream Provide Act 2019). We made sure that all Nepalis who were in the US in 2015 and qualified for TPS but did not get it would also qualify for permanent residency. This means PR for 30,000 Nepali, which is a big deal.

We are fighting a bigger fight than just TPS. We are also looking at comprehensive immigration reform. It is broken, and reform is overdue by decades, so we want to push for comprehensive immigration reform including a pathway to permanent residency for undocumented workers or those in the middle of a status. Within that it is to make sure TPS holders and DACA recipients get permanent residency.

Adhikaar does not necessarily work with diversity visas, but we expect the Biden administration to roll back the limit on diversity visas by the Trump presidency.

What was the status of undocumented workers during the pandemic?

Narbada Chhetri: Vulnerability is relative, TPS workers at least had work permits and pay taxes. Undocumented workers were disproportionately impacted. Because they do not pay taxes, they did not get benefits like everyone else. In addition, they also do not have insurance nor the confidence to access healthcare. Adhikaar supported 768 Nepalis financially. It is easy to forget that undocumented workers are doing essential jobs as well. It is because a domestic worker takes care of a doctor’s child, while he or she in the hospital fighting to save lives.

Many undocumented workers are still under a lot of financial and mental stress, especially those who have spent an enormous amount of money to come here through irregular channels, and continue to pay lawyers or loans back home. 

Pabitra Benjamin: Undocumented workers do not have desk jobs, they have to be physically present at their workplaces, which increases their levels of risk to exposure. There is some potential conversation on support for PR in the case of essential workers. When we fight for what essential worker means, it is also the delivery workers, Uber, Lyft drivers and domestic workers. Any pro-immigrant benefit that goes to essential workers should go to them as they were also doing essential work during the pandemic.

What has Adhikaar’s engagement with elected officials like Alexandria Ocasio-Cortez the Representative for New York’s 14th Congressional District been like? And your experience mobilising voters of Nepali origin?

Pabitra Benjamin: The focus for Adhikaar is about building the power of Nepali speaking workers, but services do not just come from anywhere. It requires fighting for policy changes, building relationships with elected officials including Congress members, state representatives and city officials. They understand that we provide something unique: we have a large reach with the most impacted communities of over 10,000 Nepali speaking individuals, and as numbers speak in politics there is trust in the organisation.

Narbada Chhetri: When we first started in 2007, there were not many Nepalis with voting rights, but that has changed and so has our civic engagement and reach. 

The good thing is that those who win come back to us and keep their promises, which has been encouraging whether it is our work on health insurance for TPS holders, a bill for nail salon workers, language justice for health provision in hospitals, litigation for TPS and so on. We choose who we work with based on issues. If there is a common cause, we engage with them as representation is important.

Prarthana Gurung: Representation is important. We fall under new immigrants and as our communities grow, it is exciting to see people who look like us running for office, but that is not sufficient. We not only need representation but also need people who take our interest, support us, and can be held accountable, not just to those who vote for them but also to everyone including those without voting rights in their districts whom they represent.

Read also: A Biden presidency, climate and the Himalaya, Sonia Awale