By Attorneys Ben Loveman and Nancy Miller
The Ninth Circuit will soon hear oral arguments in two cases which could dramatically alter the ability of persons granted Temporary Protected Status (TPS) to apply for lawful permanent residency. The two cases concern whether a person granted TPS is considered inspected and admitted. The question is crucial because many TPS beneficiaries entered the country without inspection and are not eligible for adjustment lawful permanent resident status under the Immigration and Nationality Act (INA). The result is that they must complete their green card processing at US Consulate in their home country. When they leave the US, they invoke the unlawful presence bar and must either obtain a waiver – assuming they have a USC or LPR parent or spouse – or wait for ten years before they can return.
Section 245(a) governs the majority of applications for adjustment of status and requires that the applicant prove they have been inspected and admitted (or paroled). Without proof of admission or parole the applicant is not eligible for adjustment of status unless they are covered by a special exception contained in section 245(i). The details of 245(i) eligibility are beyond the scope of this article but to qualify a person must be the beneficiary of a petition filed on or before January 14, 1998 or prior to April 30, 2001 provided they were also physically present in the United States on December 20, 2000.
For many thousands of TPS beneficiaries living in the jurisdiction of the Ninth Circuit Court of Appeals (California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, and Alaska) who are not covered by 245(i), the outcome of the two cases will determine whether they can apply for green cards inside the United States or will be required to apply for immigrant visas abroad. The stakes for TPS beneficiaries are high as applying for an immigrant visa abroad requires departing the U.S., triggering waivable ten-year bar to reentry, and uncertain prospects about when and if they can return to the U.S. Departing the U.S. means separation from loved ones, interruption in work or loss of jobs and many myriad of other potential problems. Applying from within the U.S. allows the applicant to avoid the risks of departure and maintain employment while in the process of obtaining their green card.
The Ninth Circuit is not the first court of appeals to face the question posed in these cases. The Sixth Circuit Court of Appeals already ruled that being granted TPS status constitutes an admission for adjustment of status purposes while the Eleventh Circuit has deferred to USCIS’s policy to the contrary. The circuit split means that people living in different parts of the country are living under different rules despite the fact that immigration law is Federal and should, in theory, be uniform across the country. Generally, when Circuit splits involve significant issues such as the one discussed here, either USCIS adjusts its policy to conform to the most immigrant friendly ruling nationwide or the issue ends up before the Supreme Court which then decides the issue on a nationwide basis.
Even if the Ninth Circuit does not rule that TPS approval equals a lawful admission for purposes of adjustment of status, there are other routes for TPS beneficiaries to obtain permanent residency which have been made available by relatively recent changes to immigration law policy. Amongst these is the provisional waiver and advance parole. The provisional waiver process allows beneficiaries of immigrant visa petitions who were not inspected and admitted to the United States to apply for pre-approval for a waiver of the ten-year bar they will trigger upon departing the U.S. to apply for an immigrant visa abroad. This process significantly reduces the risks and uncertainties for those wishing to apply for permanent resident status but who have to apply abroad. With the appropriate, sufficient and properly presented evidence, the provisional waiver can be approved but the process still involves uncertainty and the need to depart the U.S. Advance parole is the name USCIS gives to temporary travel documents that TPS and other persons are eligible to apply for under certain circumstances. Those who obtain advance parole and use the permission to travel out of the U.S. and then return will be able to apply for adjustment of status inside the U.S. upon return to the U.S. A grant of advance parole is no guarantee of being allowed to enter the U.S. and carries its own potential problems; thus, one no one should apply for advance parole before consulting an experienced and knowledgeable immigration attorney.
Anyone with TPS should consult an experienced immigration attorney to discuss how recent and forthcoming changes in law may affect their ability to obtain permanent resident status.