New York Lawyer's Legal Updates

El Salvador Loses TPS Protection

Author: New York Immigration Attorney Alena Shautsova

On January 8, 2018, the Trump Administration announced revocation of TPS for El Salvador. In a statement, Secretary of Homeland Security Kirstjen M. Nielsen announced that:

To allow for an orderly transition, the effective date of the termination of TPS for El Salvador will be delayed 18 months to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. Salvadorans in the United States who benefited from TPS may still receive other protections under our immigration system for which they are eligible. About 260,000 Salvadorians who currently hold TPS will be exposed to removal starting from September 9, 2019.

Salvadorians who hold TPS at the moment faced a dilemma: they have to find a solution to their immigration status or go home. In two decades, many developed strong ties with the US: US citizen children, spouses, long-term employment or self-employment. And they have nothing in El Salvador.

The most common “immigration issue” that I see in many cases of people from El Salvador would be an illegal entry (entry without inspection or EWI) or prior deportation order, often in absentia. Sometimes, there is also an issue of a criminal conviction.

Here, I would like to discuss some (but not all) possible solutions for such problems.

First of all, a person who would like to stay in the US legally, would have to apply for a status (like a U, T or S) that is possible to receive in the US despite the illegal entry or unlawful presence, or for a green card (permanent residency). To do so, a person has to meet certain very specific criteria. For a U visa: a person has to prove that he/she became a victim of a crime and suffered serious damage, plus a law enforcement official or a judge signed a U visa certification. For a T visa, a person has to prove that he/she is a victim of human trafficking. For an S visa, a person has to cooperate with the US government in a criminal investigation.

Any application for a green card starts with the “foundation”, an underlying petition. Such a petition can be a relative petition (petition by a US citizen child who is 21 years old or a US citizen or LPR spouse); an employment petition; or some sort of self-petition. The next step in receiving a green card is to see if a person has any obstacles for “building” the lawful permanent status on that foundation. Such an obstacles can be: an illegal entry, unlawful presence, criminal conviction; prior deportation, prior Immigration issues, etc.

Once “obstacles” are identified, a person has to see if there are any solutions for them. For example, a prior order of deportation can be addressed in most cases via two ways: a motion to reopen, or an I-212 plus I 601A waiver combo (of course, if a person has qualifying relatives and would qualify for the waivers). An illegal entry can be addressed via “legal theories” of what constitutes an admission: in some States of the US, a grant of TPS erasers the illegal entry and allows its beneficiary to adjust status as if he/she was legally inspected and admitted at the port of entry (as if he/she arrived in the US with a visa). A beneficiary of an approved VAWA self-petition would be forgiven for illegal entry. A person who received a U visa may file for a waiver that would illuminate many various obstacles, almost all of them, in fact, except for those pertaining to sabotage, espionage, genocide, and participation in Nazi persecution.

There are some forms of Immigration benefits that are available only in court: cancellation of removal or withholding of removal, for example. Withholding of removal can be granted to a person who qualifies for asylum but missed the one-year filing deadline.

To timely identify “obstacles” and solutions for them is the hardest part of the entire process because a mistake or lack of knowledge can deprive one of legal immigration status in the US. It is important that before deciding how to proceed, one consults with an attorney.

If you have questions regarding possible qualifications for Immigration benefits, please call us at 917 885 2261.

12 January 2018
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