How to Go from TPS to a Green Card.
In the recent decision, Ramirez v Brown, 852 F.3d 954 (9th Cir. 2017), the 9th Circuit Court of Appeals provided that certain persons under Temporary Protected Status or TPS may be eligible to apply for adjustment of status to that of a lawful permanent resident in the United States.
What is TPS?TPS, or Temporary Protected Status, is a form of temporary immigration relief available to people from specific countries including El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. Under TPS, citizens or nationals of these specified countries are provided both work authorization and temporary protection from removal. The US government can, however, terminate the protection at any time following a 60 days* notice.
Who is eligible for TPS?To be eligible for TPS, you must:
* Be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country;
* File your application during the open initial registration or re-registration period, or meet the requirements for late initial filing during any extension of your country*s TPS designation;
* Have been continuously physically present in the US since the effective date of the most recent designation date of your country; and
* Have been continuously residing in the US since the date specified for your country.
Those with TPS are required to re-register every other year. Persons are not eligible for TPS who have been convicted of any felony or two or more misdemeanors, or are subject to any mandatory asylum bars such as persecution of others or engaging in terrorist activity.
How can a Person with TPS Apply for Adjustment of Status?Generally, individuals can only apply for lawful permanent residence when he or she has been *inspected, admitted or paroled* into the US and has an immigrant visa immediately available.
Those who entered without inspection are not eligible to receive lawful permanent residence in the US. Usually an admission is deemed to occur at a border with some type of valid visa.
However, under Ramirez v. Brown, individuals who entered the US without inspection, and who were subsequently granted TPS, may now be eligible for adjustment of status based on an immediate relative petition. The 9th Circuit found that TPS is considered an *admission* as required for adjustment of status. Currently only the 9th and the 6th Circuits allow persons with TPS to adjust their status in the US. Therefore, persons with TPS who reside in the following states may benefit from these decisions: California, Arizona, Alaska, Nevada, Oregon, Washington, Idaho, Montana, Hawaii, Michigan, Ohio, Kentucky and Tennessee.
It should be noted that the 11th Circuit Court of Appeals has taken a contrary position to that of the 6th and 9th Circuit. Therefore, persons with TPS who entered the US without inspection may not adjust their status to permanent residents of the US if they reside in Alabama, Georgia or Florida.
As an alternative avenue to adjustment of status, persons with TPS may apply for advanced parole and reenter the United States lawfully. Advance parole may cure a prior entry without inspection. This may be the best option for those who do not have an immediate relative or live outside of the 6th and 9th Circuits.
Persons with TPS who qualify for adjustment of status may want to take action soon since the future of TPS is uncertain. The Trump administration is already ending TPS for persons from certain countries. Further, since there is a circuit court split over whether a TPS grant is an admission, the issue may reach the US Supreme Court and who knows which way the Court would rule on this issue.