The Supreme Court just handed down a decision that will deflate the hope of filing for green card (while present in the U.S.) for about 400,000 individuals in the U.S. with Temporary Protected Status (TPS).
The case concerns the plight of Jose Sanchez who with his wife and three children entered the US illegally in 1997. His fourth child was born in the U.S. and is a U.S. Citizen. In 2001, after a series of natural disasters in his home country of El Salvador, he applied for and was granted TPS. TPS may be filed by nationals of certain countries who have experienced or are experiencing ongoing civil strife, environmental disaster, or other extraordinary and temporary conditions. In 2014, Jose applied for a green card by submitting an application to adjust status to a lawful permanent resident. USCIS denied his application finding that he was ineligible to apply because he did not enter the US lawfully.
In order to file for adjustment of status, an applicant must show admission and status. At issue is whether Jose was properly admitted? Was he deemed to have lawfully entered the US by having TPS?
Jose’s attorney argued yes that having been admitted is inherent in the TPS status. But the government argued that admission and status are distinct from one another and a person can be in TPS status but fail to have lawfully entered the US. Despite the lower court’s ruling in favor of Jose, the Supreme Court in a unanimous opinion agreed with the government and ruled that TPS does not eliminate the effect of unlawful entry, which in his case, makes him ineligible for adjustment of status.
But note that this decision does not bar a TPS holder who was lawfully admitted from applying for adjustment of status. Around 85,000 TPS holders have successfully adjusted their status – filed for and received their GC while physically inside the U.S. In almost all of the cases, they were able to document their admission – lawful entry.
Finally, there is still a path to green card for those who like Jose entered the U.S. without inspection. Instead of filing for adjustment of status, a potential applicant may obtain his/her green card via the I-601A / I-601 waiver process. The waiver if approved will “forgive” the unlawful entry. At some point of the process, the applicant will need to be outside of the U.S. The applicant will obtain an Immigrant visa at an overseas post, enter the U.S. with an immigrant visa, and upon entry in the U.S., becomes a lawful permanent resident. The waiver process focuses on the applicant’s immediate relatives. The key inquiry is whether or not they will suffer extreme hardship if the applicant is denied admission to the U.S.