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ADJUSTMENT OF STATUS FOR PEOPLE WITH APPROVED TEMPORARY PROTECTED STATUS
The Supreme Court has recently ruled that someone who entered the United States illegally but then received temporary status may not consider themselves “admitted,” and so may not be able to adjust their status to become a lawful permanent resident.
What is the New Development?
In order for someone to be eligible to adjust their status to become a lawful permanent resident, two requirements they must fulfill are: they must have been inspected and admitted to the United States and they must (with some exceptions for parents, spouses and children of U.S. citizens) be in lawful status when they apply to become a lawful permanent resident of the United States.
The new Supreme Court ruling deals with the first requirement: that people who are applying to become lawful permanent residents must have been inspected and admitted or paroled into the United States. Previously, some courts recognized approved Temporary Protected Status to mean that the recipients of TPS had been retroactively “inspected and admitted” when they were granted TPS, even if they hadn’t actually been admitted into the United States when they physically arrived in the United States.
So, in the past, if someone was able to cross into the United States without any interaction with the authorities and then later got TPS, they would be treated as if the U.S. government had always let them into the United States.
Now, the Supreme Court has stated that those rulings are incorrect. According to the Supreme Court, while TPS fulfills the requirement of lawful status, it does not fulfill the requirement of being inspected and admitted into the United States.
Who does this change affect?
This change affects people who currently have TPS and who want to adjust their status to become a lawful permanent resident, if those individuals entered the United States illegally.
TPS recipients who were inspected and admitted or paroled at the border are not affected at all. If you initially entered the United States with a visa of any kind – including a student’s visa, a worker’s visa, or a visitor’s visa – you were inspected and admitted at the border.
If you are not sure if you were inspected and admitted at the border, you can make an appointment with Attorney Jon Wu to discuss the circumstances surrounding your entry to the United States.
Are there any exceptions?
There are a few very narrow exceptions. For example, if you are a 245(i) applicant (this may apply to you if you are applying to adjust your status based on a petition filed before 2001), then you do not need to have been inspected and admitted to the United States.
If you have received any legal status other than TPS, you may also be eligible for a different narrow exception. If you are not sure about the impacts of receiving other legal benefits, you can make an appointment with Attorney Jon Wu to discuss the impacts.
I wasn’t initially admitted to the United States, but I’ve since temporarily left and returned. Am I OK now?
Unfortunately, if you left the United States and returned using a travel authorization that allowed you to maintain your TPS, Immigration has stated that this particular re-entry does not fix the original problem of the circumstances surrounding the applicant’s initial entry to the United States.
If you were not admitted the first time you entered the United States, you will not be considered admitted if you get permission to leave temporarily and return.
I think this change might apply to me — can I get around this requirement somehow?
Depending on your exact circumstances, you may ultimately need to temporarily leave the United States to complete some of your application process abroad so that you can be properly admitted. Then, you may need to return to the United States as someone holding an approved visa.
However, DO NOT LEAVE THE UNITED STATES WITHOUT FIRST CONSULTING WITH AN IMMIGRATION ATTORNEY, even if you receive notice informing you that you have received a visa at a consulate overseas.
Depending on the duration and circumstances of your stay in the United States, there may be a requirement that once you leave the United States, you may not return for a certain amount of time. If you leave the United States, even just to get a visa on a very short trip, you may trigger a 10-year bar that will cause immigration not to let you return to the United States even though you have a visa.
There ARE some situations where, even if you would normally be subject to the 10-year rule, you can ask for special permission from immigration to remove that bar. Certain very close relatives of U.S. Citizens whose relatives would be seriously negatively affected by the bar can file waiver requests.
If you do not know if you might be subject to the 10-year bar, or if you think you might be subject to the 10-year bar and want help with a waiver or to discuss your options further, you can contact Attorney Jon Wu for personal advice.
Is there any way this rule will be changed?
There is a pending bill that has passed the House but not yet the Senate which would change TPS so that it is considered an admission to the United States for the purpose of filing to adjust one’s status.
However, that bill has been stuck in-between the House and the Senate since March of 2021, and so it is not at all guaranteed that the bill will indeed pass the Senate and become a law. You can track that bill’s progress here.