Green Card From Within the United States for TPS Holders

 

By Liliana Gallelli, Esq.

The 9th Circuit, which governs California, has recently made a decision that hugely impacts the immigration benefits for persons with TPS status in its Ramirez v. Brown, decision.  Ramirez v. Brown __F. 3d ___ (9th Cir. 2017).[1]

TPS, “Temporary Protected Status”, is a result of the Secretary of Homeland Security’s designation of a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. During a designated period, individuals who are TPS beneficiaries: (1) are not removable from the United States, (2) can obtain an employment authorization document (EAD), (3) may be granted travel authorization.

The Ramirez v. Brown decision allows persons in TPS status to adjust status within the United States.   Adjustment of status is the process that a foreign national can use to apply for lawful permanent resident status (also known as applying for a Green Card) when present in the United States.[2] This means that the intending immigrant may get a Green Card without having to return to his or her home country to complete visa processing.  To qualify for adjustment of status, among other things, the foreign national must have been “admitted” into the United States.  The Ninth Circuit’s decision largely rests on its conclusion that the section of the INA governing TPS itself “unambiguously treats aliens with TPS as being ‘admitted’ for purposes of adjusting status.”

Prior to the Ramirez v. Brown decision, persons in TPS status faced the same bar as all other persons who entered without documentation.  Generally, if a person enters the United States illegally, the foreign national is considered “inadmissible” and as such, is barred from adjusting status within the United States. Persons who are inadmissible must obtain a waiver for the illegal entry based on extreme hardship to a qualifying relative and then consular process in their home country for an immigrant visa.

Because of similar case law litigation throughout the country on this same issue, USCIS had been placing adjustment of status cases on hold.  This month, USCIS updated its official position confirming that TPS is considered an admission or purposes of adjustment of status under the jurisdiction of the 6th and 9th circuits only.  The government has directed its field offices to proceed with adjudication of filings previously placed on hold in accordance with USCIS’s updated position.

 

[1] The Ninth Circuit covers California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, and Hawaii, as well as the Northern Marianas Islands and Guam

[2] Eligibility for lawful permanent resident status is outside the scope of this article.  The most common forms of obtaining a green card are through a family petition, employment, or after having been granted asylum or cancellation of removal.

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