Some TPS Recipients Granted an Easier Path to Adjustment of Status
In two courts of appeals, grants have been introduced and upheld that effectively allow Temporary Protected Status to qualify an individual for adjustment of status.
The Sixth Circuit was the first to introduce such a provision in Flores v. USCIS in 2013. The Ninth Circuit followed suit in 2017 with Ramirez v. Brown.
The landmark decisions were justified by Sixth and Ninth Circuit courts, asserting that TPS can serve as an “admission” in adjustment of status. The courts referenced the Immigration and Nationality Act (INA) to defend their decision, specifically citing section 245(a).
This decision allows TPS individuals who entered without inspection (EWI) to fulfil the requirement of “inspected and admitted or paroled.”
Still, this alone is not enough to adjust one’s status. To qualify for adjustment, individuals must:
- Currently hold up-to-date and valid TPS
- Have come to the United States without inspection before receiving their TPS
- Live within the jurisdiction of the Sixth or Ninth Circuits
- Be eligible for the adjustment under the other necessary prerequisites, including:
- A visa is immediately available for them
- The individual is not inadmissible
- There are no statutory or regulatory bars to adjustment
There are additional disqualifying factors that could bar applicants from being afforded permanent residency. These include:
- If the individual did unauthorized work before applying to adjust their status
- If, when applying for the adjustment, they are of unlawful immigrant status
- If they fail to maintain a lawful status beginning when they entered into the country
In both the Sixth and the Ninth Circuit cases, the plaintiffs were married to American citizens, thereby foregoing the bars to their adjustment based on unlawful status or unauthorized work.
Since there are no restrictions on the number of visas given to immediate relatives every year, those in this group always have a visa immediately available to them. This constitutes the vast majority of TPS recipients eligible for a simplified path to permanent residency.
A smaller, but still notable, group of affected individuals include those in employment-based cases. Those eligible for a visa in any of the first four preference categories are not affected by the bars for unlawful status or unauthorized employment. They are only held to the following requirements:
- They were lawfully admitted to the United States
- They have not violated a condition of admission
- They have not performed roles in unauthorized employment
- They have successfully maintained lawful status
Other Circuits
While many hope that other circuit courts will adopt the same statutory interpretation of the INA, other courts have previously ruled on and rejected the matter.
The Eleventh Circuit Court addressed the issue in 2011 in Serrano v. United States. The court decided that TPS did not satisfy the admission requirement for adjustment of status. This means that TPS recipients who entered without inspection cannot adjust their status unless they meet the requirements of INA 245(i).
Still, the precedent set by the Sixth and Ninth Circuit provide a glimmer of hope that the matter may be revisited by additional circuits to further assist family- and work-based immigrants.
If you or a loved one need assistance applying for an adjustment of status, contact Musa-Obregon Law PC.