“Can I Get a Green Card?” A Tricky but Critical Question for TPS-Holders
Temporary Protected Status, or TPS, has been under attack this year. Citizens of Haiti, Honduras, Nicaragua, and now El Salvador are suddenly facing the possibility of having to return to threatening conditions in their native countries. Now that TPS is no longer an option, what about a green card?
How can TPS help someone qualify for residency?Applicants for a green card (a.k.a. permanent residency), must show 4 things: (1) they entered the United States legally; (2) a visa is immediately available to them; (3) they are not barred from residency; and (4) they are not "inadmissible."
I'll touch on (2) through (4) in a bit, though the details of each one could fill many articles. For now, let's look at number (1): legal entry into the United States. This is where TPS can help.
For starters, it's important to understand that immigration law is controlled by the federal government (not the states). Also, federal courts interpret federal law. There are federal court 11 "Circuits," which each have control over certain states. These Circuits don't always agree on what the law means.
This is important because the 9th and 6th Circuits say that TPS counts as a legal entry into the United States. The 11th Circuit says it doesn't. The rest of the Circuits haven't made a decision yet. My office is in Colorado, which is in the 10th Circuit. California is in the 9th Circuit. Different rules apply to TPS-holders living in Colorado and California because the federal courts that interpret the federal law in these states have said (or not said) different things.
Enough civics. What does this all mean?It means that people living in these states have a good rule: Alaska, Arizona, California, Hawaii, Kentucky, Michigan, Ohio, and Tennessee. In these states, TPS-holders who otherwise qualify (meaning they also satisfy numbers 2-4) can get a green card.
People living in these states have a bad rule: Alabama, Florida, and Georgia. In these states, TPS-holders who entered the U.S. illegally in the first place cannot use their TPS to satisfy requirement number 1: a legal entry. Of course, if a TPS-holder entered legally before receiving TPS, they already have a legal entry, so they satisfy number 1. This article does not address their situation.
TPS-holders living in any other state do not have a clear rule to follow. Unfortunately, USCIS (the agency that decides green card applications) agrees with the 11th Circuit. If you live in Colorado, for example, USCIS will not treat your TPS as a legal entry, and they will deny your green card application.
There are a couple possible solutions to this problem.
Solution #1: Move (seriously)If you live in Colorado or another state that has a bad rule on TPS, you can move to a state with a good rule, and then that good rule will apply to you.
Now is the time to do this! If you wait and your TPS expires either before you file your application or before USCIS decides your application, the good rule might not help you. The federal court cases that made the good rule assumed that the person was in TPS status all the way up until USCIS decided the green card application.
Solution #2: Advance ParoleAdvance parole allows a TPS-holder to leave the United States and return with permission. This return counts as a legal entry, which satisfies requirement number 1.
Before you think this is a perfect solution, consider the risks. Someone who has previously left and returned to the United States without permission could be allowed to leave on advance parole but then denied entry back into the country. Also, the rules could change while you are outside the country and make it harder or impossible to return. Finally, USCIS is taking months to approve advance parole applications. By the time you get permission, leave and come back, and file your green card application, your TPS might have expired already.
Consider your immigration history and risk tolerance, and seriously consider talking to a lawyer before applying for advance parole.
Other requirements for permanent residency, numbers 2-4.Just having a legal entry is not enough to get you a green card. You must also prove the remaining 3 requirements: (2) a visa is immediately available to you; (3) you are not barred from residency; and (4) you are not "inadmissible."
Number (4) is too broad to get into much detail here because there are so many ways to become inadmissible. Two of the big ones are criminal violations and immigration violations, but there are many more (drugs, prostitution, medical issues, financial issues, public safety, etc.). A thorough screening by an immigration lawyer is the best way to make sure you are not inadmissible.
The best way to satisfy numbers (2) and (3) is to be the "immediate relative" of a U.S. Citizen. This means you are the spouse of a citizen; the parent of a citizen who is 21 or older; or the minor, unmarried child of a citizen. Step-parents and step-children also count as immediate relatives in certain circumstances.
Immediate relatives of citizens always have a visa immediately available to them once USCIS accepts their relationship is genuine (i.e. USCIS has approved the citizen's Form I-130 application).
Immediate relatives are also exempt from the bars to residency. If you are not the immediate relative of a citizen, you could be barred from residency if you ever worked without authorization, or you have ever been in the country without legal status.
TLDR (Too long, didn't read)So if you live in the 9th or 6th Circuit currently have TPS and you are the immediate relative of a U.S. citizen, then you qualify for a green card, assuming you are not inadmissible. Talk to an immigration lawyer right away. If you wait, you could miss your window to become a permanent resident.
If you live anywhere else, you currently have TPS, and you are the immediate relative of a U.S. citizen, but you entered the United States without a visa, consider your options. You might want to move to a state in the 9th or 6th Circuits, or you might consider applying for advance parole. Either option is a major decision and has some risks.