The Zika Virus Epidemic as Grounds for TPS


Politically difficult, but logically unavoidable, is temporary protective status (TPS) to protect foreign nationals against the Zika virus.

As expected, there are many uncertainties about a newly endemic disease, but the current medical consensus is that while the majority of infected people suffer no, or at worst, mild flu symptoms, fetuses risk catastrophic injuries, particularly microcephaly, birth with a tiny head/brain. The primary, but not exclusive vector of infection is Aedes mosquitos. Blood transfusion and sexual transmission have been reported. There is no immunization or treatment; prophylaxis is avoidance of mosquitos, protective clothing and insect repellant, the effectiveness of which is questionable.

The World Health Organization, the Pan American Health Organization, and the United States Centers for Disease Control and Prevention have issued warnings concerning travel to Zika infested areas. In addition to Brazil, pregnant or travelers expecting to become pregnant are warned about at least 20 other countries, especially in Central and South American, Caribbean, and Pacific areas. Ironically, while the Zika virus was first found in and was named after an African Uganda forrest, the local population tend not to be infected, perhaps because of built up immunity or disabled mosquitos. Daily, sometimes hourly, updates to Zika warnings are common. The most current reliable information is available at

The Department if Homeland Security is authorized to grant TPS, a temporary authorization of continued presence in the US, work, and, return admission. Historically, it has been granted to people confronting return to armed conflicts, natural disasters or outbreak of disease. For example, the most recently granted TPS for an epidemic was Ebola on November 21, 2014 to nationals of Sierra Leone, Guinea, and Liberia. Some TPS has lasted a generation (Honduras, Nicaragua, Liberia), but the average has been of shorter duration. Currently, over 300,000 nationals from a dozen countries are benefitting from TPS. Specific eligibility requirements and the list of countries designated for TPS are available at

The United States is a signatory of and committed to the U.N. Protocol Relating to the Status of Refugees which protects an alien from forced return to a country threatening life or freedom based upon, race, religion, nationality, political opinion, or membership in a particular social group. Concerning refugees this is codified in 8 U.S.C. 1101(a)(42), 8 U.S.C.1158, and 8 U.S.C. 1231. Similarly, concerning TPS this is found at 8 U.S.C. 1254(a). In relation to Zika, "social group" at minimum can be defined as pregnant woman, but should include fertile women, and could be broadened to couples anticipating conception, since M to F sexual transmission has been documented.

The Zika epidemic can be distinguished from previous exercises of TPS, because there is minimal danger directed to the life of the foreign national - 80% of those infected have no symptoms, the remainder may have a mild flu - but the potential consequences to their children are devastating. Clearly, stillbirth or gross neonatal infirmities cruelly affect the parents. The humane choice, consistent with the non refoulement principles of the U.N. Protocol and Title 8 of the USC, should include temporary protection from unavoidable biological consequences to future children of foreign nationals.

Adding to the political consequences of epidemiologists' predictions that Zika will spread across national boundaries to wherever carrier mosquito species are indigenous, including parts of the United States, is the fact that TPS during pregnancy would result in the birth of United States citizens. In a political environment where "14th Amendment" citizenship of children of undocumented parents is being challenged, employing pregnancy or fertility as criteria for TPS will not be a popular decision. But it would be the correct decision.

Reprinted with permission.

About The Author

Steve Krup is an attorney in Hollywood, Florida.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.