By Attorneys Michael Bhotiwihok and Nancy E. Miller
The U.S. Citizenship and Immigration Services’ new policy indicates that a grant of Temporary Protected Status (“TPS”) is considered an admission for INA Section 245(a) purposes for adjustment of status applicants residing in the Sixth and Ninth Circuits. TPS recipients do not have to leave the United States and consular process through a United States Embassy or Consulate. Instead, families are kept together and lives continue in the United States. The new USCIS position came from Flores v. USCIS in the Sixth Circuit and Ramirez v. Brown in the Ninth Circuit; both courts held that a TPS grantee is considered “inspected and admitted” under INA Section 245(a).
The USCIS’ willingness to recognize TPS as an admission is significant because residents in the Sixth and Ninth Circuits who were granted TPS now may apply for a green card in the United States. The Sixth and Ninth Circuit’s large geographic reach includes a large number TPS grantees. The Ninth Circuit encompasses California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, and Hawaii. The Sixth Circuit includes Tennessee, Ohio, Michigan, and Kentucky.
In Ramirez v. Brown, the Ninth Circuit held that a TPS recipient is eligible to adjust to legal permanent resident status in the United Status. The Ninth Circuit reasoned that receiving TPS deems an individual to be in lawful status and satisfies the nonimmigrant requirements, such as inspection and admission, for adjustment of status purposes.
In Ramirez, a dispute arose over whether being a TPS designee provided a pathway to obtaining lawful permanent residence status under the adjustment statute. The United States Immigration and Citizenship Services (“USCIS”) found Ramirez ineligible to adjust to lawful permanent resident status on that ground that he last entered the country without inspection therefore he had not inspected, admitted or paroled as required by Immigration and Nationality Act (“INA”) Section 245(a). The Ninth Circuit held that TPS designation provides a pathway to a green card.
INA Section 245(a) requires that an applicant prove that he or she has been inspected and admitted (or paroled) before being eligible to adjust status to lawful permanent residency. Because of the Ramirez decision, TPS recipients who entered the United States without inspection are now considered admitted and qualify for adjustment of status under INA Section 245(a) provided they have an independent means of immigrating.
Prior to the Flores and Ramirez decisions, only those with proof of a legal entry, an exception under INA 245(i), advance parole, or parole based on a family member in the United States Armed Forces could complete their lawful permanent residency process without leaving the United States.
TPS may be granted by the USCIS to foreign nationals due to conditions in their country, such as a natural disaster or civil war, which prevent the foreign nationals who are living in the United States from returning safely to their country. The Department of Homeland Security has currently designated the following countries for TPS: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and Yemen.
TPS status allows foreign nationals to live and work in the United States without the fear of being removed/deported. TPS is a temporary benefit that does not directly lead to a green card. However, registration for TPS does not prevent one from applying for nonimmigrant status, adjustment of status based on an immigrant petition, or any other immigration benefit or protection.
For TPS grantees outside of the Sixth and Ninth Circuits, attention must be directed to monitoring current pending cases in their respective jurisdictions. For example this year, in Bonilla v. Johnson, the United States District Court, District of Minnesota, held that a grant of TPS satisfies the threshold requirement of admission for purposes of becoming eligible for adjustment of status to a lawful permanent resident.
In addition, TPS grantees should consider alternative routes to obtaining a green card. The Provisional Unlawful Presence Waiver (“Provisional Waiver”) allows beneficiaries of immigrant visa petitions who were not inspected and admitted to the United States to apply for a waiver of the ten-year bar that will be triggered by departing the country to apply for an immigrant visa abroad. The Provisional Waiver allows applicants to know whether their waiver is approved or not before departing the United States. Thus, the uncertainty and risks of leaving the United States to consular process are alleviated. The Provisional Waiver decreases the time that families are separated and keeps families together during the consular processing of an immigrant visa.
Any TPS grantee should seek the advice of an experienced and knowledgeable immigration attorney to discuss his or her immigration options and eligibility to obtain a green card in the United States.