TPS Recipients in Ninth Circuit Can Adjust Status Even After Illegal Entry, Court Rules

Holders of Temporary Protected Status in Ninth Circuit no longer need to do consular processing or submit waiver for unlawful presence.

If you live in the jurisdiction of the federal Ninth Circuit Court of Appeals and have Temporary Protected Status (TPS), and you have hopes of applying for a green card someday, there's good news: The Ninth Circuit court recently held that, under § 244(f)(4) of the Immigration and Nationality Act, a TPS holder is legally considered to be in lawful status as a nonimmigrant--just as if that person had been legally inspected and admitted to the U.S. upon entry.

This has huge implications when it comes to your ability to adjust status, also known as apply for a green card without leaving the United States. (This assumes that you will someday become eligible for a green card, perhaps through a family member.)

If your last entry to the U.S. was unlawful (for example, by you crossed the border illegally), and you've spent more than 180 days (about six months) in the U.S. illegally, you could fall into the same trap that many do when it comes to applying for a green card: Your illegal entry would make you ineligible to adjust status (despite the fact that you continue to meet the green card qualifications), but your unlawful presence (before you got TPS) could bar you from reentry if and when you go to the U.S. consulate in your home country to apply for your immigrant visa/green card.

Without a waiver (which not everyone qualifies for), you could thus be stuck outside the U.S. for three or ten years (depending on how long you stayed in the U.S. without lawful status).

But the Ninth Circuit's decision solves this for people within its jurisdiction. It found that the plaintiff-appellee, who had TPS, was eligible to obtain lawful permanent residence, the TPS having conferred lawful status quasi-retroactively.

If you are not within the boundaries of the federal Ninth Circuit (mostly comprising Western states, as well as Hawaii, Alaska, and Guam), stay tuned to see whether this decision will be extended to you.