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There was some good news from the courts last week for Temporary Protected Status (TPS) holders who may be seeking to adjust status to permanent resident and obtain a green card.
By way of background, in 2012, a landmark Board of Immigration Appeals case, Matter of Arrabally and Matter of Yerrabelly, 25 I&N Dec. 771 (B.I.A. 2012), found that TPS holders who entered the U.S. without inspection by an immigration officer (also known as “EWI”) could leave the U.S., reenter and be admitted by an immigration officer, and apply for adjustment of status without triggering inadmissibility issues for any time spent unlawfully in the United States.
Recent court decisions have taken this one step further, by allowing TPS holders in certain jurisdictions to apply for a green card without the requirement that they leave the U.S. first.
On May 30, 2014, the U.S. District Court for the Western District of Washington held in Ramirez v. Dougherty that a grant of TPS qualifies as “inspection and admission.”
This definition is hugely important, because it allows immigrants who entered the without inspection by an immigration officer and were later granted TPS to apply for a green card based on marriage to a U.S. citizen. In the case before the court, an El Salvadorian man who’d lived in the U.S. for 15 years, received TPS, and married a U.S. citizen, was allowed to apply for adjustment of status without leaving the U.S. and being readmitted.
In the decision, the judge wrote that requiring a TPS holder to leave the country in order to apply for a marriage-based green card was “waste of energy, time, government resources, and will have negative effects on his family.”
In another case decided a year ago, called Flores v. USCIS, the Sixth Circuit also found that a grant of TPS satisfies the “admission” requirement to apply for a green card. Here, a Honduran citizen was granted TPS in 1999, married a U.S. citizen in 2010, but was not allowed to apply for adjustment of status due to his EWI in 1998.
Just like in Ramirez, the Court found that requiring TPS holders to first leave the U.S. in order to apply for a green card “would be absurd . . . [and] a waste of energy, time, government resources, and will have negative effects on his family – United States citizens.”
This good news is tempered by the fact that these court cases are only binding in Western District of Washington and the states included in the Sixth Circuit’s jurisdiction (Michigan, Ohio, Kentucky, and Tennessee). That means there is what is known as a “circuit split” on this issue.
For example, the Eleventh Circuit issued a decision in 2011 finding just the opposite – that a grant of TPS is NOT considered an “admission” for the purposes of adjusting status. Stay tuned for an update if other jurisdictions rely on these recent court cases and determine whether a grant of TPS cures any past EWI issues.
In the meantime, if you have TPS and are hoping to use it as a basis to go forward with a green card application without leaving the U.S., talk to an immigration lawyer regardless of which circuit you live in. In the most extreme scenario, you might actually want to move to a different state in order to utilize the local federal circuit’s allowance of adjustment of status by TPS holders, but you’d definitely want to seek legal advice on this first.