Supreme Court Says TPS Does Not Turn an Unlawful Entry Into a Lawful One for Purposes of Adjusting Status

June 8, 2021 Bad news for TPS holders seeking to adjust status to permanent resident and obtain a green card: The Supreme Court says if their last entry to the U.S. was unlawful or they've worked without authorization, they cannot use the procedure known as "adjustment of status" to apply for a green card.

** LEGAL UPDATE **

Bad news has come down from the U.S. Supreme Court for people who hold Temporary Protected Status (TPS) and who hope to one day to become U.S. lawful permanent residents.

Despite previous decisions by lower federal courts, TPS holders whose last entry to the U.S. was unlawful (perhaps because they crossed the U.S. border illegally), or who've worked in the U.S. without authorization, will continue to face the same problem as every other unlawful entrant: Even if they have some theoretical basis on which to apply for a green card (such as a job with an employer willing to provide sponsorship, or marriage to a U.S. citizen) they are not allowed to use the procedure known as "adjustment of status" to apply for it.

Recent court decisions in some federal jurisdictions had said the opposite, namely that a grant of TPS basically turned someone's entry into a lawful one (that it was equivalent to an "inspection and admission") and that TPS holders could therefore access the adjustment of status procedure. But the Supreme Court's holding in Sanchez v. Mayorkas has overruled this, nationwide.

It's important to realize, however, that some media headlines have overstated the problem, saying that TPS holders who entered unlawfully cannot apply for green cards at all. That's not true; it's just that such applicants won't be able to apply via adjustment of status. And unfortunately, that will prevent many of them from receiving a green card altogether.

Why Adjustment of Status Is an Important Procedure to Access

Adjustment of status is the U.S.-based method of applying to become a permanent resident and obtain a green card, and it avoids significant problems that can arise if one has to leave the U.S. and apply for residence at a U.S. consulate.

In particular, people who, as part of their green card application process, must attend an interview at a U.S. consulate face the prospect of being found inadmissible because of time they spent in the U.S. unlawfully. The penalty for such inadmissibility is a time bars, which blocks immigrating or returning to the United States as follows:

  • For three years. Someone who has spent more than 180 continuous days (approximately six months) in the U.S. unlawfully and then left voluntarily (before being caught and placed into removal proceedings) could be barred from coming back for three years.
  • For ten years. Someone spent more than one continuous year in the U.S. unlawfully, and then left for whatever reason (including being deported) could be barred from coming back for ten years.

It is possible for some applicants to apply for a waiver (legal forgiveness) of their unlawful presence (and of other grounds of inadmissibility). Nevertheless, such waivers require unique circumstances.

Learn more in Consequences of Unlawful Presence in the U.S.—Three– and Ten-Year Time Bars and Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar. You'd definitely want a lawyer's help with this process.

Is There Another Way to Turn One's U.S. Entry Lawful?

The focus, when qualifying to adjust status, is on whether one's most recent entry to the U.S. was lawful; or whether one has been "lawfully admitted" in some other status.

If a TPS holder can gain a temporary status that's considered to come with lawful admission, it can lead to green card via adjustment of status. The best bets for this are the U visa and T visa for victims of crime and trafficking. Asylum is also a possibility, if the person was persecuted in the home country of fears persecution upon return.

Also, TPS holders are allowed to depart the U.S. with a grant of Advance Parole, then return. But is that a lawful entry? For a time, some courts were saying yes. But the TPS holder in the Supreme Court's recent decision had also entered on Advance Parole, and it didn't help him. The Court found that entering on an Advance Parole document was not a "lawful admission" as would be required under the law in order to qualify to use the adjustment of status process. (See 8 U.S.C. § 1255(k).)