Immigration Relief Options for Bahamians After Hurricane Dorian

Immigration Relief Options for Bahamians After Hurricane Dorian

Hurricane Dorian made landfall as a Category 5 storm over the northern Bahamas on September 1, 2019, causing extensive damage to Abaco and Grand Bahama Islands, with a combined population of almost 70,000 people (the entire country has an estimated population of almost 390,000). The U.S. government, along with international humanitarian entities, is coordinating with the Government of the Commonwealth of the Bahamas in the relief effort. As of September 12, the United States had contributed almost $10.2 million in humanitarian assistance to the Bahamas in response to the hurricane.

As a result of the impact of Hurricane Dorian, some Members of Congress have expressed interest in options for Bahamians to travel to or remain in the United States. The United States enjoys close economic linkages and cooperative relations with the Bahamas. Many Bahamians have relatives in the United States, and there is a sizeable Bahamian-born population residing in Florida. According to CRS correspondence with Customs and Border Protection (CBP), as of September 13, approximately 3,500 people had arrived in Florida from the impacted islands of the Bahamas; approximately 1,500 of these individuals were U.S. citizens and 2,000 were non-U.S. citizens who had valid documents in their possession.

Requirements for Travel to the United States

According to CBP, based on a 1974 bilateral agreement, certain Bahamian nationals may travel to the United States without a visa if they are pre-inspected by CBP in the Bahamas and are determined admissible. (Note that this visa exemption is different from the Visa Waiver Program, in which the Bahamas does not participate.) Requirements for Bahamians' visa-free travel to the United States include possession of a valid passport indicating Bahamian nationality and a police certificate indicating no criminal record. In addition, the purpose of travel must be business or pleasure "for a short duration" (typically no more than six months).

On September 9, CBP issued a press release stating that Bahamians arriving to the United States by sea must have a visa and that all travelers must have government-issued identity documents. It further stated that "CBP Port Directors may use discretion and will consider all exigent circumstances on a case by case basis in accordance with existing laws and regulations." At a press conference on the same day, Acting CBP Commissioner Mark Morgan stated, "We will accept anyone on humanitarian reasons that needs to come here." He further noted that all arrivals would be vetted and processed and that those deemed inadmissible would not be returned to the Bahamas "because it's unsafe," but would be turned over to Immigration and Customs Enforcement (ICE).

Bahamians who want or need to obtain a visa for travel to the United States may qualify for B visas, designed for temporary travel for purposes of visiting family, tourism, or business. The standards for a visitor visa—including demonstrating no intention to immigrate permanently—have not changed since the hurricane. Applicants must apply online and attend an interview at the U.S. consulate in Nassau. The consulate closed for a week due to Hurricane Dorian but continued emergency visa appointments; it is currently scheduling both regular and expedited visa appointments. Some Members of Congress have requested (see here and here) that the Trump Administration waive visa requirements in the aftermath of the hurricane.

Selected Immigration Relief Options

U.S. law does not provide permanent immigration relief for foreign nationals seeking admission because they have been uprooted by natural disaster. It does, however, provide temporary mechanisms by which foreign nationals may enter the United States, or, for those already in the country, may be allowed to remain for some period of time.

Temporary Protected Status (TPS) provides relief from removal and work authorization to foreign nationals in the United States from countries experiencing armed conflict, natural disaster, or other extraordinary circumstances that prevent their safe return. According to statute, the Secretary of Homeland Security may designate a country, or part thereof, for TPS for periods of 6, 12, or 18 months at a time. Several countries have been designated following natural disasters, including Haiti, Honduras, Nepal, and Nicaragua. In his September 9 press conference, Acting Commissioner Morgan indicated that TPS would be an appropriate response to Hurricane Dorian, but subsequent media reports (see here and here) stated that the Trump Administration has no plans to proceed. Congress is considering legislation (H.R. 4272, H.R. 4303, S. 2478) that would designate the Bahamas for TPS.

Deferred Enforced Departure (DED) is a discretionary, administrative stay of removal granted to foreign nationals from designated countries. Unlike TPS, DED is not in statute but emanates from the President's constitutional powers to conduct foreign relations. The President designates DED for nationals of a particular country for a limited period of time. While covered by DED, foreign nationals do not accrue unlawful presence, cannot be removed, and are generally eligible for work authorization. DED has been used a total of five times; Liberia is the only country currently designated.

In addition to these two "blanket" forms of relief, the Immigration and Nationality Act (INA) authorizes DHS to "parole" inadmissible aliens into the United States, on a case-by-case basis, "for urgent humanitarian reasons or significant public benefit," provided that they "present neither a security risk nor a risk of absconding." DHS typically grants parole for a fixed period but has discretion to terminate the parole whenever it determines that "neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States." Paroled aliens may obtain work authorization and do not accrue unlawful presence while the parole remains valid.

DHS also has the discretion not to remove an inadmissible or deportable alien. Following Hurricane Mitch in 1998, for example, the Clinton Administration temporarily suspended the deportation of Central Americans. Prior to Hurricane Dorian, ICE stated that it "does not conduct immigration enforcement operations at hurricane evacuation sites or shelters."

In addition to existing mechanisms, Congress has provided case-specific immigration relief following past natural disasters. In 1958, for example, Congress passed the Azorean Refugee Act, which allowed victims of a volcanic eruption to immigrate to the United States.