TPS as adjustment of status: Is it viable?

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TPS (temporary protection status) is a pathway that has allowed thousands of undocumented individuals to stay in the US legally. Did you know that sometimes TPS can lead to adjustment of status (a green card?) 

Many people are not aware of this possibility. Let us talk to you about TPS and adjustment of status. 

What is TPS? 

TPS is a protection the Secretary of Homeland Security can discretionally grant to citizens of certain countries. They can give this status because they deem that the return of the citizens to their countries is unsafe – usually because of a natural disaster, pandemic, or other direct circumstance. USCIS can grant TPS to eligible nationals of these countries who are already in the US. The USCIS can grant TPS under these three temporary conditions: 

  • Ongoing armed conflict 
  • Environmental disaster or epidemic 
  • Any other extraordinary conditions they see fit 

During the period, these individuals: 

  1. Are not removable from the US. 
  1. Can work legally in the US. 
  1. Can receive travel authorization. 

Now we can talk in detail about TPS as adjustment of status. 

TPS and adjustment of status 

By itself, TPS does not lead to lawful permanent resident status. It is just a temporary protection measure. However, being a TPS holder does not prevent you from: 

  • Filing for adjustment of status due to an immigration petition if you otherwise qualify 
  • Applying for an immigration benefit or protection 

Thus, even if TPS itself does not lead to an adjustment of status, you can use it to have temporary protection while you readjust your status. This is especially beneficial for individuals who were denied immigration benefits or asylum. They can apply for TPS to avoid deportation while they explore additional possibilities with their attorney. 

However, remember that the TPS itself does not lead to a green card, nor it’s itself an adjustment of status. 

What about undocumented individuals? 

If you were an undocumented immigrant that applied for TPS, things get tricky. Many think that this does not impede adjustment of status, but the reality is more complicated than that. Until not so long ago, the policy was clear. If you had entered without inspection or had an order of removal, you could not adjust your status even if a US citizen petitioned for you. The conditions were that the illegal entry was the only thing preventing your adjustment and if it was based on a petition of an immediate relative. 

USCIS likely caved to the influence of anti-immigrant organizations who believe TPS is bad policy. Thus, it stated it no longer views the grant of TPS as a change in an individual’s unlawful entry. Therefore, they are not eligible for a green card. Until challenged, TPS as adjustment of status will not work. 

Still, as usual, the final call is on the courts, but their decisions, so far, have been mixed. The Ninth and Sixth Circuits ruled that TPS holders can adjust their status to LPR through family or employment petition, even if they came to the US without inspection. However, the Eleventh Circuit ruled that TPS holders that came to the US without inspection are not eligible for adjustment. 

How to interpret this? 

The legal issue is whether or not TPS qualifies as an “admission” to the US. If it does, then any prior unlawful entry no longer counts, as it would be “cured” by the grant of TPS. When you think about it, filing for TPS is the same thing as presenting your documents at the border: you identify yourself, show why you came and why you can’t go back, and you’re allowed into the country. That’s how we argue it should be regarded, anyway. USCIS is trying to change that, by arguing that TPS is not “status” (even though that’s what the “S” in TPS stands for).  

 Thus, that is the position applicable in all circuits other than the Ninth and Sixth. If you’re a bit confused, you can check this map to see which circuits cover which states. Although immigration law is federal, it actually does vary from state to state! We’ve used these changes in the law to help our clients, and have gotten green cards for former TPS holders. 

These can be difficult issues to understand and navigate. Let us be the helping hand to fight for your green card. Nothing will happen until you take the first step. 

Reach out to us by jumping on a call, or filling our contact form!

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