Congress confer valid and lawful status as nonimmigrant to aliens currently under a grant of Temporary Protected Status in order for them to adjust status to permanent residents, regardless of how they have entered in the United States: INA 244(f)(4).
The 5th Circuit Court allow TPS EWI to adjust status to Green Card holder, if they are beneficiaries of an approved petition from US citizen mate. The 5th Circuit Immigration Court reasons that a grant of 'TPS waives a prior unlawful entry' since aliens have to be admissible in the U.S. to get such grant. However, the 11th Circuit Court rejects such reasoning, despite such logic is supported by INA 244(f)(4) and Black Letter.
What it would takes for the 11th Circuit Court to change its course by complying with INA 244(f)(4) principles?
When there is a circuit split, it is up to the U.S. Supreme Court to resolve it. Or, another case would have to come up in the 11th Circuit on this issue and that circuit would have to reverse its precedent through an en banc decision (meaning that all or most of the judges of the circuit would vote on the decision, as opposed to a panel of three judges).
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Mr. Wiedemann’s answer is correct. When there is a split among the Circuit Courts of Appeal, the US Supreme Court must resolve it. However, I believe that your question may have more to do with your personal situation as opposed to curiosity about the law. If you are looking for a strategy to resolve your status, please consult with an experienced immigration attorney.
This attorney is Board Certified, speaks Spanish and French, and has an office in South Florida. For more information, click through to the Blog or web site.
Elizabeth R. Blandon
You are taking the 5th Circuit Case out of context. The 5th Circuit case was a criminal matter and the issue was whether the defendant was in the United States without authorization after having previously been deported. The 5th Circuit said that TPS was "lawful authorization" to be in the U.S., it did not state that an alien has be admissible to be granted TPS because an alien does not. Only certain grounds of inadmissibility prevent the granting of TPS. Additionally, the Court did not state that an alien granted TPS is eligible for adjustment of status. That issue was not before the Court and it not "black letter" as you state.
The Board of Immigation Appeals recently decided a case which states that the granting of TPS prevents the actual removal of an alien from the United States. However, it does not prevent DHS from pursuing removal proceedings against an alien. In other words, the government can still try to obtain a removal order, but if successful, it can't enforce that order until TPS is terminated. The Board did not rule on the adjustment of status issue.
USCIS takes the position that an alien who entered the U.S. without inspection is ineligible for adjustment of status unless the alien is eligible for adjustment pursuant to section 245(i) of the Immigration and Nationality Act and that a grant of TPS does not cure this ineligibility. I have reviewed the TPS status in detail and believe that the USCIS position is wrong and am in the process of litigating the issue based upon different arguments then have been advanced in other courts.
This is obviously of great importance to you. I know of very few attorneys who are dealing with this issue (I happen to be and I know of one other). There may be other issues which complicate your case as well which would have to be considered. I suggest you schedule a consultation with an attorney who is familiar with the issues surrounding this litigation so you determine how best to proceed. If you feel you have a strong case then you should litigate it. That is sometimes the only way the interpretation of the law is changed for the good of everyone similarly situated.
As the other attorney replies, splits in the Circuits are resolved by the Supreme Court. However, let me tell you, having TPS does NOT allow a person to adjust status based upon an approved I-130 in the 5th Cir. I know -- this is where I practice. What we have to do is to apply for Advance Parole for the TPS holder. If granted, they leave the US for a couple of weeks. Then when they return (hopefully they are admitted without a fuss), THEN we are able to adjust them as the entry with advance parole makes them eligible for 245(a) adjustment (if they marry a US citizen).