07 Jun 2021

United States

Supreme Court Restricts Path to Green Card for Certain TPS Holders

On June 7, 2021, the U.S. Supreme Court issued a unanimous opinion holding that a grant of temporary protected status (TPS) does not make an individual who unlawfully entered the U.S. eligible to become a lawful permanent resident (LPR), or green card holder.

The TPS program provides humanitarian relief to foreign nationals in the U.S. when conditions in their home country make it unsafe to return. The Secretary of Homeland Security can designate a country for TPS, and then must monitor conditions every 18 months to extend or terminate the designation. Individuals granted TPS are protected from removal and authorized to stay and work in the U.S. as long as the designation lasts. Entering the U.S. unlawfully, such as an unauthorized entry without inspection, is not a barrier to or disqualification from TPS eligibility. Presently, 12 countries are designated for TPS and more than 320,000 individuals are TPS beneficiaries.

Despite its temporary nature, some TPS holders have been in the U.S. for more than 20 years. The countries of Honduras and Nicaragua were first designated in 1999, and El Salvador in 2001, due to natural disasters in Central America. The conditions in those countries never sufficiently improved, resulting in continuing TPS designations every 18 months. 

Over the years, many TPS holders sought to obtain permanent residence in the U.S., whether through family-based or employment-based immigration. Section 1255 of the Immigration and National Act (INA) permits a nonimmigrant to adjust his or her status to LPR, under certain conditions—one of which is a lawful admission into the United States. Over the past decade, several federal courts have been asked to consider whether the conferral of TPS, which results in a beneficiary being “considered as being in, and maintaining, lawful status as a nonimmigrant,” is sufficient to meet the lawful admission requirement of INA §1255(a). Three appellate courts—for the Third, Fifth, and Eleventh Circuits—found that it is not sufficient, and that a grant of TPS does not absolve an unlawful entry. Three different appellate courts—for the Sixth, Eighth, and Ninth Circuits—held the opposite. As a result, TPS holders in some parts of the country were able to apply for adjustment of status to LPR despite entering the country unlawfully, while others were not.

The Supreme Court accepted the case of Mayorkas v. Sanchez in early 2021 to resolve the conflict between these decisions. Justice Elena Kagan, writing for a unanimous Court, concluded that INA §1255 generally requires both a lawful admission and the maintenance of lawful nonimmigrant status to adjust to LPR. A grant of TPS provides lawful status, but does not alter a previous unlawful entry, nor does it otherwise equate to a lawful admission.  

In a footnote, the Court stated that its decision in Mayorkas v. Sanchez did not decide whether a TPS holder who leaves and re-enters the U.S. pursuant to advanced parole could adjust status to LPR under INA §1255. TPS holders are eligible for advanced parole, and the specific requirement under INA §1255(a) is that an individual be “inspected and admitted or paroled into the United States” (emphasis added), which could provide a potential alternative for individuals who were not lawfully admitted. Thus, TPS holders without a lawful admission who depart the U.S. and re-enter on parole may still be eligible to adjust to LPR, if none of the other bars to adjustment found in INA §1255 are applicable to them.

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Alan Tafapolsky


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