Changes To Adjustment Of Status Policies For TPS Holders
Author: Green Card Lawyer Alena Shautsova
The changes to the policy happened right before the start of the holiday season, December 20, 2019. Unfortunately for some, these changes are not gifts. Since the development of temporary protected status (TPS), and the ability to travel outside the country temporarily and return if you obtained a special permission from USCIS; a TPS holder who previously had an illegal entry or outstanding order of removal could legally adjust their status in the US if their previous illegal entry was the only thing preventing them from adjusting based on an immediate relative petition. See more on How to Get a Green Card.
What did it mean? It mean that:
- A person who got married to a US Citizen could adjust their status without going through a rigorous waiver process.
- A parent of a US Citizen could do the same.
Basically, TPS Holders were in a much better position to get a green card after they traveled outside of the country with an advance parole document. The recent changes to the policy are trying to eliminate these benefits for TPS holders who traveled outside the US and came back. In a policy alert announcement last week, USCIS announced that since the language of the immigration laws regarding TPS (INA 244(f)) state that TPS beneficiaries may not be removed from the US while they have TPS, they will no longer view travel and return outside of the US as a change in a person’s entry from an illegal entrance to a legal entrance. USCIS is also insisting that for TPS holders with final orders of removal, the travel does not execute the final order.
Essentially, now:
- If a TPS holder had an illegal entry, traveled on advanced parole, and came back to the US with a legal entry, they will not be allowed to use this legal entry to apply for their green card.
- If a TPS holder had a final order of removal, traveled on advanced parole, and came back to the US, USCIS will still view TPS holders as having a final order of removal.
- No changes to eligibility to adjust status will be recognized when a TPS holder travels outside of the US and comes back.
- The advance parole entry will not execute the outstanding order of deportation or removal
The problem with this policy update is that it is misconstruing the legal terms in an attempt to make changes to the law. While USCIS may be able to prevail initially that they made these changes in good faith to execute the immigration laws of the US, they are likely to lose on procedural grounds as they have in the past when such radical changes to policy occur suddenly. Luckily, USCIS is not the last stop; the Federal courts have the final decision. After TPS holders have their cases denied, they can appeal arguing that USCIS has misapplied the law. Moreover, USCIS is likely to have a federal injunction placed against them for failure to comply with the Administrative Procedure Act (APA) because their actions exceed their executive power and invade the sovereignty of Congress.
For TPS holders that have had their case denied due to the policy changes, two options are available:
- The appeal of the denial and potential lawsuit in a Federal court
- Start the process over again without using the travel to cure illegal entry or final order of removal.
- File an I-601A waiver to cure illegal entry. See more on I601A waiver.
- File a motion to reopen if applicable the deportation proceedings (may have to appeal to the BIA as well if the Immigration judge denies the motion). More on a motion to reopen.
Note that if you reside in the Sixth and Ninth Circuits, a grant of TPS by itself, without the travel is considered an admission according to the local court’s decisions.
If your case for adjustment of status has recently been denied due to the recent policy change, please call our office at 917-885-2261 or book it here to schedule a consultation and discuss the pros and cons of either appealing with the BIA or filing for an I-601A waiver and starting the process over.