By Attorneys Sara N. Cross & Nancy E. Miller
For several countries affected by armed conflict, environmental disaster, or other extraordinary conditions, the program which allows foreign nationals to stay and work in the United States legally, Temporary Protected Status (“TPS”), will soon be coming to an end. For nationals of Sudan, their program will terminate on November 2, 2018; for nationals of Nicaragua, TPS will end on January 5, 2019; for Haiti, TPS will terminate on July 22, 2019; and for El Salvador, TPS will come to an end on September 9, 2019. So, for a national of one of these countries, is there anything someone who is currently in valid TPS status can do to facilitate immigration into the United States before their TPS status terminates?
Recently, United States Circuit Courts of Appeal in the Ninth and the Sixth Circuits have held that a grant of TPS qualifies as an admission under the Immigration and Nationality Act (“INA”), thus satisfying the “inspected and admitted or paroled” requirement for adjustment of status purposes, meaning that they qualify to complete the processing of their lawful permanent resident status (“green card”) without having to leave the United States. In both the 9th and 6th Circuit cases, the immigrants involved were married to U.S. citizens, and the bars preventing adjustment of status, relating to failure to maintain lawful status and unauthorized work were not applicable in each case. This benefit would also apply to parent of a United States citizen who is over 21 years old and is petitioning them.
Following the Ninth Circuit’s precedent decision, a United States District Court in California, held that a grant of TPS status by USCIS, constituted an “entry” (and, thus, entitlement to relief) in relation to a prohibition to adjustment of status under a different code section. This bar states that a person, “must maintain continuous lawful status since entry to the United States.” The U.S. District Court held that the grant of TPS status is the date of entry to the country, and as long as the person maintains lawful TPS status continuously since their initial grant, they shall be deemed as “being in and maintaining” lawful immigrant status. Importantly, the plaintiff in the District Court case, was a national of El Salvador, who initially entered the U.S. without inspection, but was granted TPS in 2001 and continuously reapplied and received renewal to his TPS status. Also, notable, is that the petitioner for his relative petition, was his U.S. citizen mother.
In California, at least, this latest decision paves a pathway for those who have entered the U.S. unlawfully, but who have since obtained and maintained lawful TPS status. For a person in this position, who knows that their TPS status will terminate on a specific date, there are steps they can take right away to facilitate at possible transition to lawful immigration status. If they have a qualifying relative, that is a Legal Permanent Resident or U.S. Citizen spouse, parent, or child over 21-years-old, that relative can file a Petition for Alien Relative. It is imperative that this petition be filed as soon as possible, as it normally takes USCIS many months to process. Once the petition is approved, and provided a visa is available for that category, a person then can file an adjustment of status application.
Another possible avenue, although it hasn’t been addressed by a court in this context, is to have an employer file an Immigrant Petition for Alien Worker, on behalf the person currently in TPS status, if they qualify under an employment-based immigrant visa category. However, this avenue also requires the additional step of obtaining a labor certification from the Department of Labor. Once the labor certification and the immigrant visa petition are approved and provided a visa is available for that category, the person can file an adjustment of status application under an applicable section of the INA.
It is important to note that each person in the above referenced Court Decisions, was still in lawful TPS status when they filed to adjust their status and obtain their Green Card. That is why it is important to get the ball rolling on this process as soon as possible, so that an adjustment of status application can be filed before TPS status terminates.
If you believe that you or a family-member may be eligible for adjustment of status because of TPS or you are concerned because your TPS status is going to expire and you don’t know what to do, consult an experienced and knowledgeable immigration lawyer immediately. You might be able to benefit in ways you never thought possible.
