If you are a Temporary Protected Status (TPS) holder, you may be wondering if adjustment of status for TPS 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 citizens of particular nations. These nations face a variety of challenges that make it unsafe or difficult for their citizens 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 legal status to thousands of people living in the U.S. It is generally granted to people whose countries are experiencing environmental disasters, armed conflict, or temporary but extraordinary conditions.
As part of immigration law, it provides a suspension of deportation and a work permit, among other benefits, to foreign nationals currently living in the U.S. at the time of designation.
Because the legal processes can be complex, it is always important to consult an attorney if dealing with adjustment of status issues.
Adjustment of Status TPS and Why It Matters
Adjustment of status under the TPS program is one of the easiest ways to obtain permanent residency or a green card in the U.S. for eligible aliens with unlawful status. It is convenient because it is not necessary to leave the United States to apply for an immigrant visa at a consulate.
Individuals who as part of their permanent residence application process need to attend an interview with an immigration officer for consular processing face the possibility of being denied residency. This is especially true if you are found to be in the United States illegally.
If you are found inadmissible, you could spend time in jail and be barred from returning to the U.S. as follows:
For three years : If you have been unlawfully in the U.S. continuously for more than 180 days and then left voluntarily, you could be barred from returning to the U.S. for up to three years.
For ten years: if you were in the U.S. illegally for more than one year and then left for any reason, including deportation, you may be barred from returning for up to ten years.
While not always the case, some applicants may be able to apply for a waiver of their illegal entry, although this would require unique circumstances.
U.S. Supreme Court Ruling on Adjustment of Status Through TPS
The U.S. Supreme Court recently issued a ruling on the legal status of aliens granted TPS who hope to one day become lawful permanent residents.
While there is a circuit split, a recent Supreme Court ruling clarified the issue. The ruling affirmed that TPS beneficiaries whose last illegal entry into the United States or those who have found employment illegally in the United States 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 U.S. citizen or having employment with an employer that provides sponsorship), they cannot use adjustment of status procedures.
Recent district court decisions had said the opposite by stating that obtaining TPS converted illegal entry into legal entry. Basically, this meant that a person who obtained TPS had the equivalent of “admission” and “inspection.” This meant that they could then avail themselves of adjustment of status procedures to obtain permanent resident status.
In the case of Jose Santos Sanchez in Sanchez v Mayorkas, the courts reversed the decision of the Eleventh, Fifth and Third Circuit Courts of Appeals. The court ruled that individuals who enter the United States illegally cannot apply for permanent resident status through adjustment of status.
This means that many TPS beneficiaries who entered the U.S. without inspection may not have the opportunity to apply for a green card. However, it will not affect TPS beneficiaries who were inspected and admitted to the United States.
Since many arriving aliens could be affected 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, a participant must demonstrate that:
- Be a citizen of a TPS-designated country or, if stateless, must show proof of habitual residence in the country.
- Have been residing in the U.S. since the date of his or her country’s TPS designation.
- Have been habitually resident in the U.S. since the date specified by the Secretary of Homeland Security.
- Are not inadmissible to the U.S. or barred from seeking asylum for particular criminal or national security-related reasons. This may include any person with two or more misdemeanors or a person convicted of any felony.
Citizens of a country with a TPS designation will not be automatically eligible. Each applicant must register within a country-specific registration period and pay processing fees.
A country’s Temporary Protected Status generally lasts for several months, a year or more. That status may be extended at the discretion of the Secretary of Homeland Security. But, if a person’s home country’s TPS was removed, their status reverts back to what it was before, unless a new status has been acquired.
The best immigration attorneys can help you with TPS eligibility issues. 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 for Adjustment of Status While in TPS?
TPS allows you to live in the United States temporarily and protects you from having to return to dangerous situations in your 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 residency.
However, if you are in TPS, which means you are in the United States legally, you may be eligible for a green card for some other reason. The following are some of the theoretical scenarios in which you can apply for adjustment of status while in TPS:
- An application for a grant of asylum
- Obtaining sponsorship or job offer from a U.S. employer, and;
- Marriage to a U.S. citizen.
However, following the Jose Santos Sanchez decision, the initial or subsequent illegal entry will not become lawful even when he is granted TPS. This would make him ineligible for adjustment of status unless he leaves the U.S. to apply for a green card from a consulate.
TPS Adjustment of Status VS. Consular Processing
Although much easier, adjustment of status TPS is not the only way to obtain a U.S. green card. A green card can also be obtained through consular processing.
Consular processing is the process of applying for a green card from outside the U.S. On the other hand, adjustment of status can be used when applying for a permanent resident card (green card) from within 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 is safe and possible to return, these individuals may 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 large amount of paperwork and a medical examination, so only individuals who are certain they qualify for a green card should file an application. Note that applicants must also undergo an interview with an immigration officer. That can be risky as they may be declared inadmissible due to time spent in the U.S. without legal status.
Although consular officers must follow strict guidelines, there is no opportunity to appeal if your application is denied. 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
U.S. Citizenship and Immigration Services (USCIS) published policy guidance on TPS immigration law in the USCIS Policy Manual. The policy clarifies whether TPS beneficiaries can obtain eligibility for adjustment status under the Immigration and Nationality Act (INA).
Under INA, all aliens must be inspected and admitted or inspected and paroled into the U.S. unless specific circumstances are established.
Under INA, TPS holders are considered nonimmigrants who are lawfully residing temporarily in the United States. These aliens will have nonimmigrant status for the purpose of seeking adjustment as long as they maintain their TPS status.
As such, adjustment of status is only for aliens who applied while residing in the United States pursuant to lawful entry. A person who enters the U.S. illegally and who generally will not be considered “inspected” and “admitted” generally will not qualify for adjustment.
USCIS therefore maintains its longstanding interpretation that aliens who illegally enter the U.S. without being subject 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 U.S. with prior DHS consent, you will have the same status when you return to the U.S. If you were not considered “inspected and paroled” or “inspected and admitted” before you left, that status will not change.
According to USCIS guidance, decisions in the Sixth and Ninth Circuits deeming TPS as an admission are only limited to aliens in those jurisdictions. For aliens outside these jurisdictions, the Supreme Court’s ruling applies.
Due to the complexity of the law, you would need the services of an immigration attorney who can argue your case before an immigration judge and assist you with your adjustment applications.
Tps Must Be Up to Date for Adjustment of Status Process
TPS beneficiaries will generally maintain the immigration status they had before they were granted TPS, unless they have acquired a new immigration status or their old status has expired.
If you entered the U.S. without inspection, you may not be eligible for some benefits. For example, if you were undocumented and your TPS designation expired, you would be subject to deportation proceedings.
However, you may be able to remain lawfully in the United States by applying for adjustment of status. Some legal ways to adjust status after the expiration of TPS include:
Using the other lawful immigration status you had before becoming a TPS beneficiary.
Applying for asylum if you qualify.
Applying for other nonimmigrant status and visas.
Applying to become a permanent resident through sponsorship or visa petitions from immediate relatives or employer.
Taking steps to become a U.S. citizen.
If you are facing removal proceedings or need advice on adjustment of status, you should contact Immigration Hero’s qualified and experienced immigration team for assistance.
Lawful Status: Can Tps Adjust Status?
Legal status and its adjustment have to do with whether the most recent entry was lawful or whether you have been lawfully admitted under another status.
As a TPS beneficiary, it is possible to obtain lawful permanent residence if you are able to obtain a temporary status that presumes lawful admission. You can often adjust status under T and U visas if you are a victim of trafficking and crime and need asylum.
Aliens granted TPS can leave the U.S. on DHS Advance Parole and re-enter the United States. However, a recent Supreme Court decision held that Advance Parole is not a lawful admission, making it ineligible for subsequent adjustment of status.
Can Someone With Tps Adjust Status?
A TPS holder may change or adjust his or her status even though obtaining TPS will not cause him or her to lose his or her current immigration status. However, the grant of TPS will not waive or waive inadmissibility for unlawful presence or entry.
TPS holders must still address any admissibility issues before they can apply for adjustment or change to a different immigration status. Under immigration law, TPS holders who did not have the proper status prior to obtaining TPS are not eligible for adjustment of status.
Aliens who have entered the United States without inspection are inadmissible and will not be eligible for adjustment of status unless they have an immediate relative who is a special immigrant under the INA or a U.S. citizen.
TPS holders may file asylum applications although obtaining TPS is not proof of eligibility for asylee status.