A Window of Opportunity for TPS Holders

January 10, 2018 12:05 pm
by David Jakeman

There’s been a lot of bad news for people with Temporary Protected Status living in the US. A number of countries have lost status, and the US government has indicated that other countries might be on the chopping block. However, there is a bright spot amidst all this disheartening news, thanks to court decisions issued during 2017.

Courts Designate TPS as Admission

In both the Sixth and Ninth Circuits, the courts decided that when the government grants TPS to someone, it has “inspected and admitted” them to the United States. Previously, a TPS holder who originally entered the US without inspection was not technically admitted. Since they were not admitted, they could not adjust status.

Under these rulings, TPS holders who entered without inspection are eligible to adjust status as long as they meet the following criteria:

  • They entered the US without inspection before receiving TPS.
  • They currently have valid TPS.
  • They meet the other criteria for adjustment of status: there is a visa immediately available for them, they are not inadmissible, and they aren’t subject to any statutory bars.
  • They live in one of the states covered by either the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington).

For most categories, there are annual limits to how many visas can be granted, which means visas are not immediately available for many people. However, there are no numerical limits on visas for immediate relatives of US citizens. So for the children and spouses of US citizens, as well as for the parents of adult US citizens (older than 21), there are visas immediately available to them.

There might be limited ways for TPS holders to adjust status through employment as well, although the employment-visa process can take significantly longer due to labor certification. Consulting an immigration lawyer with business immigration expertise about individual situations would be a good idea.

Adjustment for Current TPS Holders

The court rulings are good news for current TPS holders. However, the court decisions are focused on people who have current TPS. Given that big changes are afoot with the Department of Homeland Security, the pool of people with TPS is shrinking fast. The program has already been ended for Nicaragua, Sudan, and Haiti. Honduras will quite possibly follow suit after its latest renewal expires.

If you don’t live in either the Sixth or Ninth Circuits, then these rulings don’t apply to you currently. Only people living under the jurisdiction of these circuits meets the criteria for adjustment of status. However, if you were to move to one of the included states, you would then qualify.

If you or your family member meets the new TPS criteria for adjustment of status, it’s worth getting your application in as soon as possible. Although you would probably have a good case if your TPS expired while you were adjusting status, there’s no guarantee how a court would rule. The best idea is to file to adjust status while still maintaining TPS. It would be wise to talk to an experienced immigration lawyer in Seattle or wherever you live about the particular ins and outs of your situation.

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