The US Supreme Court recently issued a decision on the matter of Adjustment of Status eligibility for people who have Temporary Protected Status. Here is the link if for those of you who would like to read it: https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf
In Sanchez v. Mayorkas, the Supreme Court held that a person who has been granted Temporary Protected Status (TPS) has not been “admitted” to establish eligibility for adjustment of status.
This decision is a resolution to a conflict among the circuit courts of appeal. There were some federal appeals court jurisdictions that deemed a grant of TPS to be an admission for Adjustment of Status eligibility purposes while others did not. Now the Supreme Court has removed that conflict.
But what does the Supreme Court ruling really mean and who does it affect? To answer that, we must first assess who is eligible for TPS and who is eligible for Adjustment of Status (AOS).
Temporary Protected Status Eligibility
For someone to be eligible for TPS, the person must be physically present in the US on the date the country of their nationality is designated for TPS by DHS. The law does not require the person to have entered the US legally. In short, all that is required is
- Presence in the US on the designated date,
- nationality of the designated country,
- and no barring criminal record.
Even deportation in the past or a deportation order does not affect TPS eligibility.
Adjustment of Status Eligibility
Adjustment of Status (AOS) is the process of applying to become a lawful permanent resident here in the US with USCIS. Usually, for someone on TPS to consider filing for AOS, they have a spouse who is a US citizen or a child born in the US who has turned 21 and who has petitioned for them.
To be eligible for AOS, the person must prove that they entered the US having been inspected and admitted or paroled. There are exceptions to this requirement, such as for someone who has been the victim of abuse at the hands of a permanent resident or US citizen spouse (VAWA) or for someone who had a qualifying petition or application that leads to permanent residence filed prior to April 30, 2001 (INA Section 245(i)).
Temporary Protected Status Grant Does Not Equal “Admission”
In the past, the argument has been made, successfully in some jurisdictions, that the USCIS grant of TPS is an “admission” for AOS purposes. After all, it is a legal status that allows for work and travel authorization. The Supreme Court has decided to put this argument to rest.
A grant of TPS is no longer considered an “admission” for AOS purposes. That means the grant of TPS does not make someone who entered illegally eligible to file for AOS, even with an approved petition from a US citizen spouse or 21 or older US citizen child.
The decision does not affect AOS eligibility for a person who is eligible without TPS. For example, if the person came into the US legally and perhaps overstayed, or even was still legally in the US on the date TPS was granted, that person can still file for AOS with a qualified petitioner.
To sum up, simply, the decision says a grant of TPS does not make a person who was otherwise ineligible, eligible for AOS.
Advance Parole for Travel Authorization Does Not Equal Parole
In August 2020, there was a significant change to the relationship between TPS and AOS that deserved more attention than it received. TPS comes with international travel authorization. The document DHS issues to prove that travel authorization is called an Advance Parole.
Prior to August 2020, when a person who had entered illegally in the past used the TPS travel document to return from international travel, USCIS deemed that person to have entered the US by “inspection and admission or parole”. That makes sense because the document the person used is called an Advance Parole. Then, the person would be deemed eligible for Adjustment of Status, assuming they had eligibility through a qualifying family or other relationship.
In August 2020, that all changed. DHS decided that the travel document issued through TPS is a document to establish the person’s eligibility for travel authorization and is not really a parole for AOS purposes. Therefore, those who entered the US illegally are unable to establish eligibility for AOS by using a TPS travel document. The Supreme Court decision in Sanchez v. Mayorkas makes it less likely any challenge to the change in August 2020 will happen.
Permanent Residency Opportunities For Those on TPS
Don’t be discouraged by these decisions. Just because TPS doesn’t provide solutions for becoming a resident in the US, doesn’t mean becoming a permanent resident isn’t possible for a person on TPS. It just means we need to find another path.
- Consular processing with a provisional waiver
- Parole in Place for relatives of US citizens serving in the US military
- Cancellation of Removal for Non-Permanent Residents
- Political Asylum and Asylum related benefits
- U or T visas for the victims of crime and abuse
There are lots of other opportunities for people on TPS to pursue to move into a more permanent legal status.
Here at Davis & Associates, we pride ourselves on being able to find solutions to challenging immigration situations. If you have an immigration issue, reach out and let us know. If there is a solution, we will help you find it. If there is not, we will tell you that and why it is the case. If we can help, we will work hard to maximize your chances of success. Give us a call.
About Davis & Associates:
Davis & Associates is the immigration law firm of choice in Houston & North Texas including Dallas, Fort Worth, Plano, Frisco, McKinney and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.
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