New York Lawyer's Legal Updates

TPS as Basis for Adjustment of Status

Author: Green Card Attorney Alena Shautsova

Temporary Protected Status (“TPS”) allows a person to stay in the US legally and work because the conditions in the person’s country are so unfortunate that the US government allows a person not to return there.

The current list of countries designated for TPS can be found at USCIS website....

For example, countries like El Salvador, Liberia, Honduras are designated for TPS. However, a person from the TPS designated country, still has to meet certain deadlines and conditions in order to qualify for TPS. The main advantages of the TPS status are work authorization (a person with TPS status can legally work in the US) and advance parole (a TPS holder may apply for permission to travel internationally).

Significantly, a person can qualify for TPS even if he/she entered the country without inspection or by “crossing the border.” The benefit of advance parole is particularly important: once a person travels using the advance parole document and gets paroled back to the US, he/she is no longer an entrant without admission and inspection, somebody who was allowed to the country legally and now can, if there is a basis for it, apply for adjustment of status or green card. Let’s say Martha is from El Salvador and she is a holder of TPS status. Many years ago she came to the US and has been renewing her status. She married a US citizen, but could not successfully get a green card because she came to the US through US/Mexican border without a visa. If Martha travels internationally using an advance parole, she will be able to get her green card in the US when her spouse files for her.

There is another situation, however: what if Martha never uses advance parole; she is a holder of TPS status, and her US citizen spouse files for her. Can she, even though she came to the US by crossing the border, get a green card?

The answer is: maybe. It depends on where Martha will be filing for the adjustment of status. Currently, the 6th, and Federal Court for the Eastern District of Pennsylvania held that YES, a person holding TPS status holds a legal status in the US and can adjust (or get a green card) without a need to leave the US using an advance parole. See Flores v. USCIS, (June 4, 2013 6th Cir) and Medina v. Beers ( ED Pa 2014). Hopefully, that the USCIS will adopt the holdings of these decisions and allow persons with TPS to apply for permanent residence on a country wide basis.

08 January 2015
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