A community braces for a decision that could change thousands of lives in the U.S. and Nepal
April 19, 2018
Shivani is afraid she will lose her legal status in the United States.
She sits with me in a conference room at Adhikaar, a women-led worker and community center in Queens, surrounded by posters detailing strategic plans and major deadlines. Shivani paints a portrait of her life as an undocumented immigrant: fear of separation from her U.S.-born grandchild, wage theft by the owner of her nail salon, and the inaccessibility of healthcare in her old age. She has been undocumented before, and she is bracing herself for a difficult future.
Meanwhile, her grandson, whom she babysits regularly, passes the time by her side, doodling on spare sheets of paper.
“How do you spell ‘worry?’” he asks no one in particular, eyes still glued to his art.
By the time Shivani wraps up her story, her grandson gifts her with a colorful note. “Don’t warry about it,” it says in crayon, reassuring his ma that things will turn out alright.
Fears like Shivani’s are stoked in Queens and in communities across the country where some 9,000 Nepalis may possess Temporary Protected Status as their only form of documentation. The Department of Homeland Security will decide by April 25 whether to renew or revoke TPS for Nepali nationals. Launched in 1990, the TPS program offers relief to migrants whose countries cannot absorb them due to environmental disaster or armed conflict.
The majority of Nepali TPS holders toil in the most unprotected, underpaid and undervalued industries today – as domestic workers, nail salons technicians and restaurant workers.
During an ambiguous time, comfort for the Nepali community in Queens takes the form of both emotional labor and community engagement. The women of Adhikaar, who spearheaded the campaign to gain TPS in the first place in 2015, are at the forefront of today’s fight to keep it alive.
TPS holders have many questions: What would it mean to readjust to a life without basic protections, to navigate not only the threat of deportation, but also workplace dynamics rife with exploitation? How do they prepare for what could be the worst?
Narbada Chhetri’s phone rang in the dead of night. A call at the witching hour signaled impending heartbreak to Chhetri, director of organizing and programs at Adhikaar. It was April 25, 2015, and a friend held the burden of informing her that a magnitude 7.8 earthquake had hit their homeland.
The tremors destroyed $7 billion worth of Nepal’s infrastructure, some 750,000 homes, 34,000 classrooms and 900 health care facilities. The damage was estimated to push 700,000 Nepalis into poverty. More than eight million people were ultimately affected back home.
The implications for the diaspora here in the United States would change the nature of Chhetri’s work.
“I was panicking. I wanted to go back, but I couldn’t because of my health and immigration status. But I also knew it would be more helpful for me to stay here and financially support my family instead,” says Pasang, a TPS holder and nanny.
In the emotional days following the tremors, Adhikaar would become a major force in petitioning the Department of Homeland Security to grant Temporary Protected Status to Nepali nationals in the U.S. Adhikaar coordinated a national campaign while providing emotional support to those whose families were hit the hardest back home, a model not too dissimilar to their usual approach, but on a more seismic scale.
The Nepali diaspora in the U.S. had never before galvanized around a national campaign, according to Luna Ranjit, former executive director of Adhikaar. Some Nepalis’ earlier political efforts had focused on fighting for democracy in Nepal, “but TPS planted the seed towards actively building out solutions here in the U.S,” Ranjit says.
The Obama administration granted TPS to Nepalis on June 24, 2015, two months after the earthquake struck their home country. Some 14,000 Nepalis initially qualified in 2015 and of these, 9,000 would renew the status in the following years.
With TPS, these individuals would be better positioned to send money to the rebuilding efforts back home.
They would also finally be guaranteed basic necessities that have remained elusive for the undocumented community here in the United States. The cohort of eligible Nepalis had lived in the country, some for decades, without work permits, social security numbers, bank accounts, health insurance, or the freedom to move across borders.
The possibility of revocation begs the question: what rights exist for undocumented workers?
“When I received TPS, it was like a weapon that I could use to fight for myself and my family,” says Ramita, who works as a nanny. “TPS has been like a safety blanket, a reassurance that I have the right to stay in the U.S., to work, to live here, to support this country as well as to support back in Nepal.”
With the possibility that TPS for Nepalis will not be renewed on April 25, all this may soon be gone.
“Revoking TPS will set off another earthquake, this time in people’s minds,” according to Pabitra Dash, a nail salon organizer at Adhikaar.
The Department of Homeland Security did not create TPS as a pathway towards permanent residency. Instead, TPS offers a temporary form of work authorization and a stay against deportation for individuals already in the United States when disaster strikes their home country.
Roshan, a restaurant worker, received a work permit after 12 years of laboring in the shadows. Now with the TPS decision looming, he says, “my employer is constantly asking me if it has been renewed or not because they want to know if it’s time to let me go.”
The possibility of revocation begs the question: what rights exist for undocumented workers?
Women of color have led the fight for labor protections in vulnerable industries for years. Undocumented Nepali women in New York could not have foreseen the earthquake and the government’s decision to offer TPS, nor could they stand to wait any longer for a pathway to citizenship to exercise their rights.
Instead, they fought for and won the passage of a state-specific Bill of Rights, both for domestic workers in 2010 and then for nail salon workers in 2015, which would protect their industries in New York regardless of legal status.
This is nothing short of groundbreaking, given the racist and anti-immigrant sentiments that have shaped labor laws.
Politicians penned labor regulations in this country that discriminated against industries with heavy people of color and immigrant workforces. Both the Fair Labor Standards Act and the National Labor Relations Act, key pieces of legislation that would guarantee minimum wage and the right to organize, excluded protections for industries with predominately African American workforces when these laws originally passed. Many TPS holders work in those same industries today.
Further, labor unions, the traditional venue to report wage theft and abuse, had pitted themselves against the undocumented worker until the turn of the century, claiming that in their apparent desperation for a job, they would be more likely to break the strike line than American workers. Even Cesar Chavez of the United Farm Workers had at one point set up vigilantes to patrol the border and keep undocumented individuals out of the fields.
“Workers must ask themselves, ‘Do I want to spend time earning money and surviving in this country now, or fighting for something that happened in the past?’ They will most often choose survival.”
Worker centers have innovated the labor rights space since the 1990s, using new tactics to channel in historically underrepresented workers, often immigrants. Through creating a shared identity based on language, Nepali, and location, Queens, Adhikaar can connect workers to attorneys who fight violations like unpaid minimum wage, tip theft, or sexual harassment. It also builds worker power to push for the passage and enforcement of policies such as the groundbreaking, industry-specific Bill of Rights. Some labor unions have since worked to incorporate the strategies born out of worker centers.
However, despite the gains made to protect workers in vulnerable industries these last few years, many Nepali TPS holders fear that they will be exploited again once their work permits are taken away.
“The majority of undocumented workers don’t believe they can assert their rights, given the current political environment,” says Irene Jor, New York director of the National Domestic Worker Alliance, which works for greater labor protections for domestic workers. “Many members of society imagine that undocumented workers don’t have the same rights as everyone else. However, anyone hired for work actually has labor rights under the law. But employers may not admit that or may not even know that.”
Adhikaar is a member of the NDWA.
Pabitra Dash recounts how she worked in a nail salon rife with abuse when she first came to the country in 2010. She labored for 11 hours per day, earning a meager $30 in a setting riddled with sexual harassment. As a masseuse, men would demand that she touch them inappropriately. When she complained to her employers, they told her to lighten up.
Dash noticed a sign in the salon itself, a direct hotline to the Department of Labor to report exactly the type of abuse she and her colleagues faced daily. She huddled with her colleagues to share her plan.
Whereas Dash expected their support, her colleagues instead reminded her that she speaks English well and that she is young, pretty. Why, they asked, should she bother with this employer if she could go and find work anywhere else? Dash, who had been a human rights defender back home in Nepal, could read between the lines, “My sisters were scared that if I sued the salon, the authorities would arrest them as well.” She left to find new work as her colleagues had instructed.
Prarthana Gurung, campaigns and communications manager at Adhikaar, understands why undocumented women tend to lay low. “When the owner tells you to hide in the back during a state health inspection, you end up internalizing the feeling that you shouldn’t be out in the open,” she says.
Jor adds, “Workers might know what their rights are through civic engagement and political education, but the fear around how employers can leverage their status against them can scare the person to think that they can’t exercise these rights.”
There are a number of reasons why it is difficult for workers to demand the rights they fought for on the books. Power dynamics skew heavily against low-wage workers. The process of filing a court case to contest abuse can be difficult, especially as enforcement of these rights is weak at the state level. Trained as generalists, individual investigators at the Department of Labor may not know which rights domestic workers, nail salon technicians or restaurant workers are entitled to, or the most common types of malfeasance in the industry.
“Who would come out in the streets and say ‘I don’t have papers and I need my Bill of Rights?’ It doesn’t work so easily.”
“When you report, the process of enforcement is so long and so time-consuming, you can get re-traumatized. Workers must ask themselves, ‘Do I want to spend time earning money and surviving in this country now, or fighting for something that happened in the past?’ They will most often choose survival,” said Tsering Lama, domestic worker organizer at Adhikaar.
Adhikaar’s approach is to be as real as possible about the process, and allow the worker to decide what is best for them.
Given that most domestic workers are hired by individual households, they are more likely to fight for their rights if a larger community is backing them.“Domestic work is so isolating, that workers fear that even if they do come forward, they will not have the power alone to assert their rights. Base building is important to our movement because it ensures domestic workers can build lasting power,” adds Jor.
Maya Gurung, TPS case manager at Adhikaar and a TPS holder herself, has seen a surge in the number of clients seeking legal recourse once TPS was granted. She says people feel more confident advocating for themselves using the Bill of Rights, both because of their new status, and also due to the trust Adhikaar has built with them since the beginning of the TPS campaign.
Dash has since organized the same women who dissuaded her from calling the Department of Labor. She says that once the group received TPS, they felt more emboldened to advocate for themselves and each other.
“Who would come out in the streets and say ‘I don’t have papers and I need my Bill of Rights?’ It doesn’t work so easily,” says Dash.
“You had a group of people who were afraid to say that they were undocumented, but now there is a new level of confidence because they can say ‘I have TPS.’ There isn’t fear anymore, and they now have a newfound confidence to advocate for things like meal breaks and better working conditions,” adds Gurung.
Still, Adhikaar’s goal is to ensure all people know their rights. “We tell our members, ‘You have that right irrespective of documentation, because workers’ rights exist irrespective of documentation!’” says Chhetri.
Chhetri also noticed that since Trump’s presidency, more employers are requesting work permits as pre-qualifications for domestic work.
“It feels more necessary to have this work authorization because employers are more likely to use deportation as a threat of retaliation. Historically, employers used other threats against workers. But ever since the election, the choice form of retaliation is to threaten to report them to ICE,” says Lama.
Jor notes that it is critical to legislate policies in New York similar to AB450, the Immigrant Worker Protection Act, signed into law by California Governor Jerry Brown. The law prohibits employers from re-verifying employment authorization except when required by federal law. It also prohibits employers from allowing immigration enforcement agents access to worksites or employee records without a judicial warrant. U.S. attorney general Jeff Sessions has sued the state of California over this sanctuary legislation.
Nonetheless, the National Domestic Workers Alliance, in partnership with Adhikaar and other members across New York, is building up the infrastructure of enforcement agencies to uplift the rights of home care and domestic workers.
“We didn’t have to do as much advocacy leading up the last renewal period,” Chhetri said, referring to when the DHS last extended TPS for Nepal in October 2016. “But we fear our outcome seeing what’s happened to other countries with TPS.” Leaders at Adhikaar have kicked their strategy into high gear.
Adhikaar formed a TPS Core Committee of directly impacted people to advise the campaign, joined a National TPS Coalition, organized phone banking to congressional leaders, participated in lobby days on the Hill, and circulated a petition that has garnered almost 8,000 signatures.
Most administrations, whether Democrat or Republican, have extended TPS for eligible countries come renewal time every 12 or 18 months. The Trump administration, however, has ended the program for approximately 250,000 people from Sudan, Nicaragua, El Salvador and Haiti.
Nationals from Haiti, for example, recently lost this status eight years after a 7.0 magnitude earthquake ravaged the country, despite a series of more recent natural disasters, including last year’s Hurricane Irma, halting recovery. According to the DHS, TPS holders have until July 2019 to self-deport. “We have been surprised at how these decisions are coming out for others. It becomes a question of whether the administration is operating out of protocol,” added Aakriti Khanal, Adhikaar’s research coordinator.
The Department of Homeland Security makes the final decision whether to extend or revoke TPS, although the State Department and congressional leadership can influence DHS’ decision. “The goal is to prove that Nepal is not in a position to receive 14,000 nationals from the United States,” said Khanal.
Three years after the earthquake hit Nepal, nearly 2.6 million people out of 2.8 million remain displaced. “The earthquake destroyed my ancestral home in Kabre village. My family waits for money from the government, but it is nowhere to be found,” confirms Gita, a TPS holder and nail salon technician.
Ramita adds, “My family lives on a floor above our farm’s livestock, and I especially think about my elderly in-laws for whom this is difficult. Even if we did have enough money to start reconstruction, the roads are not paved and last year’s floods have made it nearly impossible for people to transport construction materials.”
Because TPS holders are primarily “low-skilled” workers, the majority will experience unemployment if deported. With remittances the main source of income for 15 percent of earthquake survivors in the most hard-hit regions, terminating TPS would likely exacerbate hunger, malnutrition, and thirst, according to a report by CLINIC.
“At least in the States they get something,” said Chhetri.
Adhikaar is also showing congressional leadership that Nepalis have created vibrant lives here in the United States. “I pay taxes, I contribute to this country’s economy and society,” says Roshan, who like other TPS holders, is not eligible to receive public benefits like Social Security or food stamps.
“Whether you win or lose in campaigns, the most important thing is how you build your community in the process.”
While DHS’s ultimate decision is anyone’s guess, Adhikaar’s staff has been surprised by the range of responses from D.C., with some congressional offices questioning if Nepalis “deserve” an extension, while others, like New York’s Republican Representative Peter King, who proposed building a 700-mile border wall with Mexico back in 2006, supporting the extension.
Regardless, the fight does not end on April 25.
“When we did a mapping of the campaign work, we knew our longer-term goal would be fighting for comprehensive immigration reform in a way that truly represented new immigrants and workers, while our intermediate goal would be fighting for a legislative solution and permanent fix,” says Pabitra Khati Benjamin, executive director of Adhikaar.
No matter the outcome of DHS’ renewal decision, Benjamin describes how Adhikaar’s plan is to fight for a pathway to permanent residency for TPS holders. Adhikaar is an anchoring partner of the National TPS Alliance, a formation convened by TPS holders from Haiti, El Salvador, Honduras, Nicaragua and Nepal.
When the TPS Alliance held its first round of legislative visits in DC last summer, members were shocked at politicians’ cluelessness about a nearly 25-year-old program that hundreds of thousands of people’s survival depended upon. “TPS holders couldn’t believe that their congressional leaders, the people they see on TV, had no idea what TPS even is.” But by the time they held their second round of visits in October, a number of representatives began to ask for their help framing language around new proposals.
Of the five bills now in Congress, the TPS Alliance only supports two — the American Promise Act of 2017 and the SECURE Act. These bills would allow all past and present TPS holders, and their spouses, parents, or unmarried children, to adjust their immigration status to “lawfully permitted for permanent residency.” These individuals could apply for citizenship within five years.
“You talk to TPS holders and their favorite word is ‘solidarity’,” says Alexandra Morales of the TPS Alliance and CARACEN, which works with Central American immigrants. The Salvadoran TPS holders who have had TPS designation the longest and make up its greatest base of participants, for example, would not support a bill, like the ESPERER ACT of 2017, that does not include permanent relief for the Nepali community. “Solidarity means that no matter what, you stick together, even if it’s not convenient for yourself,” Morales adds.
The TPS Alliance’s “legislative principles” are the lowest common denominators to ensure a sound bill. These principles include offering permanent residency to all individuals who ever had TPS.
Another non-negotiable is that the bill be “clean,” or that it does not get passed at the expense of further militarization of the border, the construction of a border wall, or increased funding for deportation and detention.
“The two bills that we do support are not bipartisan, but we continue to push Republicans to jump on board. We know that as soon as any legislation moves forward, it gets watered down, so why even start with something that isn’t our ideal?” asks Morales.
But with lawmakers unable to come up with a solution for recipients of DACA, the more well-known immigration program focused on younger, college-educated immigrants, the likelihood of Congress brokering a permanent pathway for TPS holders looks grim. Most Nepali youth are not eligible for DACA, given that an influx of Nepalis arrived relatively recently through the Diversity Visa lottery, and that many Nepali youth arrive on student visas. “By the end of this year, our goal is for Congress, and especially the Black, Asian Pacific American, and Hispanic caucuses, who should be leaders on this issue, to know TPS inside and out like they know DACA inside and out,” says Morales.
She continues, “If we have only ever been second to DACA, what does it mean now that there isn’t even a first?”
“Whether you win or lose in campaigns, the most important thing is how you build your community in the process. It’s never about the sake of working on a campaign just to work on it,” said Benjamin, reflecting on a principle that is apparent in all of Adhikaar’s work: to create networks of mutual support.
The organizing efforts at Adhikaar have gotten stronger since the earthquake, with community members coming together first for emotional support, and then remaining active in a climate growing increasingly violent against immigrants.
Many current members didn’t know about Adhikaar until disaster struck in 2015. “Since then, their attendance at our events became more visible, and we have more fully brought them on board, moving them to a whole different level with regards to immigrant rights work,” Ranjit says.
Ranjit is referring to the political education that organizers use to explain why undocumented Nepalis need to fight for TPS in the first place: a broken immigration system that has not granted amnesty for undocumented folks since the 1980s, and immigration laws that have hardly been amended since the 1990s. “It’s not that we are saying that Nepalis need special protection. If people didn’t need a status to live full lives in this country, we wouldn’t need to fight for TPS,” she says.
Because TPS initially galvanized the Nepali community, Adhikaar has used it as an entry point to connect them to the larger immigrant rights movement. Benjamin says, “Our first challenge was raising the issue of immigrant rights as one that we own. People see this struggle as belonging to Latinx undocumented folks, or in the Asian space, to Korean folks, but not necessarily older Nepali workers.”
Adhikaar and its members continue to support DACA renewal, getting ICE out of courts, and building community-based self-defense through Jackson Height’s Hate Free Zone.
The staff reminds the leaders that no matter how the government acts, their goal is to build resilient systems of mutual reciprocity. “Even as people fear what’s to come, I remind our members that we have gotten folks out of detention who were exploited, all thanks to the force of the people,” says domestic worker organizer Lama. “We are transforming leaders to have strategies in their pockets, who can organize other workers to think cooperatively. I tell our members not to worry about status, because we are strong as a team.”
Since our last conversation, Shivani’s grandson has twice asked her about her immigration status. Each time, she thought of his kind note and reminded him, “You shouldn’t worry about it, either. There will be a solution.”