As of July 2022, foreign nationals in the United States under Temporary Protected Status ("TPS") are eligible to apply for adjustment of status if they were lawfully in the U.S. when they obtained their TPS. However, eligibility to adjust status is more complicated if the person entered illegally or their visa that allowed lawful entry expired prior to obtaining TPS.
What is Temporary Protected Status?
TPS was created in the early 1990s by Congress to allow immigration officials to designate TPS for foreign nationals from designated foreign countries. Generally, the conditions in the foreign country must be such that persons are temporarily prevented from returning home safely or where the foreign country is unable to safely and adequately handle returning nationals. General reasons include natural disasters, war, civil armed conflict, and things of that nature.
What is the Eligibility for Adjustment of Status
In some cases, TPS allows for a person holding TPS status to file for adjustment to status if the proper procedures are followed. To begin, a person holding TPS status must be otherwise eligible to apply for a green card -- that is, to adjust their status from temporary to permanent residence status. The basis for adjustment of status can be family-based or employment-based.
In addition, for TPS holders to be eligible to adjust their status, they must have been lawfully present in the U.S. when they obtained TPS. This creates a problem for TPS holders who entered the U.S. illegally and for those whose lawful status expired prior to obtaining TPS.
To explain, to enter the U.S. lawfully, a person must be deemed -- by the immigration services -- to be “inspected and admitted” or “paroled” into the U.S. when they arrive. This happens when you appear at a port of entry and present your entry visa. That is what is required to be "inspected" and then "admitted."
Without being "inspected and admitted" into the U.S. (at a border port of entry, for example), a foreign national is not lawfully in the country and is, therefore, NOT eligible to apply for adjustment of status. Importantly, obtaining TPS does NOT create a situation where a person has been "inspected and admitted." That is something that happened -- or did not happen -- when the person entered the U.S. So, for those in the U.S. without lawful entry, obtaining TPS did not "cure" the problem if they entered the U.S. illegally. In simple terms, if you entered the U.S. illegally, you are not eligible to adjust your status, and obtaining TPS does not "fix" that problem. This was the holding of a U.S. Supreme court case from 2020. Further, this became the policy of the immigration services in 2019 when they adopted the holding of a case called Matter of H-G-G- as agency policy. See here.
In addition, obtaining TPS does not cure any other unlawful status (such as remaining in-country after a valid visa has expired).
The problem of unlawful entry -- having not been "inspected and admitted" -- can be solved sometimes by obtaining valid travel documents -- called "advance parole" -- then leaving the U.S., and then re-entering. Generally, upon reentry at an airport, border crossing, or other port of entry, the TPS holder would then be deemed to be "inspected and admitted." In some cases, this method can "cure" the problem of illegal entry. However, not in all cases and not in all parts of the country.
Contact Yekrangi & Associates Today
For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone, and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.