TPS Adjustment Of Status: Everything You Need to Know
If you are a Temporary Protected Status (TPS) holder, you may wonder if TPS adjustment of status is an option for you. Find out everything you need to know here.
Temporary Protected Status (TPS) Adjustment Of Status
TPS is a temporary immigration status offered to nationals of particular nations. These nations have a variety of challenges that make it unsafe or difficult for their nationals to be deported to those nations.
TPS was enacted by Congress in 1990 as part of the Immigration Act. Over the years, TPS has granted temporary lawful status to thousands of persons living in the US. It is usually granted to persons whose countries are experiencing environmental disaster, armed conflict, or temporary but extraordinary conditions.
As part of immigration law, it provides a stay of deportation and a work permit among other benefits to foreign nationals currently living in the US at the time of the designation.
Since the legal processes can be complex, it is always important to consult a lawyer if you are dealing with adjustment of status issues. If you are looking for a great lawyer, then you need to contact Michael C. Murray PA, a top-rated immigration lawyer, to help you navigate the legal processes and obtain favorable outcomes.
Adjustment Of Status TPS and Why It Is Important
The adjustment of status under the TPS program is one of the easiest ways of obtaining permanent residency or a green card in the US for eligible aliens with unlawful status. It is convenient as one does not need to leave the US to apply for an immigrant visa at a consulate.
Persons who as part of their permanent residency application process need to attend an interview with an immigration officer for consular processing face the prospect of being denied residency. This is especially so if you are found to be in the United States illegally.
If you are found inadmissible, you could face time in jail and be barred from returning to the US as follows:
- For three years – If you have been unlawfully in the US continuously for more than 180 days and then left voluntarily, you could be barred from returning to the US for up to three years.
- For ten years – If you were unlawfully in the US for more than a year and then left for any reason including deportation, you could be barred from returning for up to ten years.
While not always the case, some applicants may apply for a waiver of their illegal entry, though this would require unique circumstances.
US Supreme Court Ruling on Adjustment Of Status Through TPS
The US Supreme Court recently made a ruling on the lawful status of aliens granted TPS who hope to one day become lawful permanent residents.
While there is a circuit split, a recent ruling by the Supreme Court clarified the matter. The ruling asserted that TPS recipients whose last entry into the United States unlawfully or those that had illegally found employment in the US will be treated like any other illegal entrant.
Even if such aliens can apply for a green card on a theoretical basis (such as being married to a US citizen or having employment with an employer that is providing sponsorship) they cannot use the adjustment of status procedures.
Recent district court decisions had said the opposite by asserting that obtaining TPS turned unlawful entry into a lawful entry. This essentially meant that a person that obtained TPS had the equivalent of “admission” and “inspection.” This meant that they could then make use of adjustment of status procedures to obtain permanent resident status.
In the case of Jose Santos Sanchez in Sanchez v Mayorkas, the courts overturned the decision of the Eleventh, Fifth, and Third Circuit Courts of Appeal. The court ruled that persons who unlawfully enter the United States cannot apply for permanent resident status through adjustment of status.
This means that many TPS recipients that entered the US without inspection may not have the opportunity to apply for a green card. However, it will not impact TPS recipients that were inspected and admitted into the United States.
Given that many arriving aliens could find themselves impacted by the new law, it is important to work with a qualified immigration attorney when dealing with immigration services.
TPS Eligibility For Adjustment Of Status Purposes
To be eligible for TPS, an entrant needs to prove that they:
- Are a citizen of a TPS-designated country or, if stateless, they need to prove habitual residence in the country.
- Have been residing in the US from the date of their country’s TPS designation.
- Have been residing habitually in the US since the date specified by the Secretary of Homeland Security.
- Are not inadmissible to the US or are barred from seeking asylum due to national security-related or particular criminal reasons. This may include anyone with two or more misdemeanors or one convicted of any felony.
Nationals of a country with a TPS designation will not be automatically eligible. Every applicant will have to register within a specific registration period for their country and pay processing fees.
A country’s Temporary Protected Status typically lasts several months, a year, or longer. That status can be extended at the discretion of the Secretary of Homeland Security. But, if TPS has been removed from an individual’s country of origin, their status reverts to what it was before unless a new status has been acquired.
The best immigration lawyers can help you with issues of eligibility for TPS. They will provide guidance on how to go about the process and whether you are eligible for adjustment of status under TPS.
When Can You File Adjustment Of Status While On TPS?
TPS allows one to live in the United States temporarily and protects them from having to go back to dangerous situations back in their home countries. However, it is important to note that working and living legally in the United States under the TPS program does not guarantee that you will obtain permanent residence.
However, if you are on TPS which means you are in the United States lawfully, you may be eligible for a green card on some other basis. The following are some of the theoretical scenarios when you can apply for adjustment of status while on TPS:
- An application for grant of asylum
- Getting sponsorship or job offer from a US employer, and;
- Marriage to an American citizen
However, following the Jose Santos Sanchez decision, unlawful subsequent or initial entry will not be transformed into a lawful one even when one is granted TPS. This would make you ineligible for adjustment of status unless you leave the US to apply for a green card from a consulate.
TPS Adjustment of Status VS. Consular Processing
Although it’s much easier, TPS adjustment of status is not the only way to obtain a United States green card. One can also obtain a green card through consular processing.
Consular processing is the process of applying for a green card from outside of the U.S. On the other hand, Adjustment of Status can be used when applying for a permanent resident card (green card) from inside the U.S. With consular processing, individuals have to wait in their home country until their green card (permanent resident card) is approved.
If it’s safe and possible to go back, these individuals can consider returning to their home countries. There, they can apply for an immigration visa at a U.S. embassy or consulate.
Consular processing is a multi-step process involving a lot of paperwork and a medical exam, so only individuals who are sure they qualify for a green card should apply. Bear in mind that applicants must also undergo an interview with an immigration official. That can be risky since they may be found inadmissible due to the time spent in the U.S. without lawful status.
Although consular officers have to follow strict guidelines, there’s no opportunity for an appeal if your application is rejected. That’s why getting things right the first time is important, and an experienced immigration attorney can help you with that daunting task.
Adjustment Of Status For TPS Holders
The US Citizenship and Immigration Services (USCIS) published policy guidance on immigration law on TPS in the USCIS Policy Manual. The policy clarifies whether recipients of TPS can obtain eligibility for adjustment status under the Immigration and Nationality Act (INA).
Under INA, all aliens need to be inspected and admitted or inspected and parole into the US unless under specific circumstances set out.
Under INA, TPS holders are deemed nonimmigrants that are temporarily lawfully resident in the United States. These aliens will have nonimmigrant status for purposes of seeking adjustment as long as they maintain their TPS status.
As such, adjustment of status is only for aliens that applied while resident in the United States pursuant to a lawful entry. An unlawful entrant into the US who will usually be deemed not “inspected” and “admitted” will usually not qualify for adjustment.
The USCIS thus maintains its long-standing interpretation that aliens that illegally enter the United States without being subjected to “inspection and admission” or “inspection and parole” who are subsequently granted TPS will not be eligible for adjustment.
It is important to note that if you travel outside the US with the prior consent of the DHS, this will have the same status when you return to the US. If you were not deemed “inspected and paroled” or “inspected and admitted” before leaving, that status will not change.
According to the USCIS guidance, the decisions in the Sixth and Ninth Circuits which deem TPS as an admission are only limited to aliens in those jurisdictions. For any aliens outside these jurisdictions, the Supreme Court ruling applies.
Due to the complexity of the law, you would need the services of an immigration lawyer that can argue your case in front of an immigration judge and help with your adjustment applications.
Must TPS Be Current For Adjustment Of Status Process
TPS recipients will usually hold the immigration status they had before they were granted TPS unless they acquired a new immigration status or their old status has expired.
If you entered the US without inspection, you may not be eligible for some benefits. For instance, if you were undocumented and your TPS designation expires you would be subject to removal proceedings.
However, you can legally stay in the United States by applying for adjustment of status. Some legal ways for adjustment of status after the expiry of TPS include:
- Using the other legal immigration status that you had prior to becoming a TPS recipient.
- Applying for asylum if you qualify.
- Applying for other nonimmigrant statuses and visas.
- Applying to become a permanent resident via sponsorship or visa petitions from immediate relatives or employer.
- Taking steps to become a US citizen.
If you are facing removal proceedings or need advice with adjustment of status, then you need to contact the qualified and experienced immigration team at Michael G. Murray, P.A. to take care of you.
Lawful Status: Can TPS Adjust Status?
Lawful status and its adjustment are all about whether the most recent entry was lawful or whether you have been lawfully admitted under another status.
As a TPS recipient, it is possible to obtain lawful permanent residence if you can gain temporary status which presumes lawful admission. You can often adjust your status under the T and U visas if you are a victim of trafficking and crime and need asylum.
Aliens granted TPS can leave the US with the Advance Parole document from the DHS and reenter the United States. However, a recent Supreme Court decision deemed Advance Parole not lawful admission hence making one ineligible for subsequent adjustment of status.
Can Someone With TPS Adjust Status?
A TPS holder can change or adjust their status even though obtaining TPS will not make one lose their current immigration status. Nonetheless, being granted TPS will not nullify or waive inadmissibility due to unlawful presence or entry.
Holders of TPS still need to address any issues of admissibility before they can apply for adjustment or change to a different immigration status. According to immigration law, TPS holders who did not have proper status before obtaining TPS are not eligible for status adjustment.
Aliens who have entered the United States without inspection are inadmissible and will not be eligible for status adjustment unless they have an immediate relative that is a special immigrant under INA or an American citizen.
TPS holders may make applications for asylum even though obtaining TPS is not proof of eligibility for the status of an asylee.
If you are dealing with the complexities of immigration, then you should contact Michael G. Murray, the trusted professional in immigration law. With a dedicated legal advocate on your side, you can be sure that you are getting reliable advice to help improve your chances of having better outcomes in the immigration process.