While Biden hasn’t found success with any sweeping immigration reform, his administration has been taking seemingly small actions that do not require support from Congress. One significant action in his first three years in office has been his commitment to expanding eligibility for Temporary Protected Status (TPS). TPS is a designation determined by the Department of Homeland Security (DHS), where citizens of specified countries are granted nonimmigrant status and protected from removal proceedings when U.S. officials have determined that conditions in their home country are exceptionally dangerous due to factors such as natural disasters, civil unrest, or war. Under the current administration, TPS eligibility has been expanded for citizens of Somalia, Syria, South Sudan, and Yemen and new TPS designations have been added for citizens of Afghanistan, Ethiopia, Myanmar, Cameroon, Sudan, Ukraine, and Venezuela. In total, there are now 16 TPS-designated countries and recent data indicates there are approximately 1.2 million noncitizen immigrants currently residing in the U.S. who are either already the recipient of, or are eligible for, TPS. Considering the rapid increase in TPS eligibility, practitioners should be familiar with the mechanisms and limitations of TPS to best support their clients who are recipients of or eligible for this designation.
The TPS designation provides for more broad coverage than the similar asylum designation, as it provides blanket eligibility for any citizen of the designated countries rather than requiring the applicant to present evidence of a personal threat to their safety should they return to their home country. However, unlike asylum, TPS only provides for nonimmigrant status and temporary work authorization as long as DHS continues to designate the country and does not provide its own path to permanent residence (a green card) in the U.S. While the TPS designation does not provide a direct path to a green card on its own, TPS holders may pursue permanent residence through other means, such as sponsorship by their employer or a U.S. citizen relative. However, in order to adjust status to permanent residence from inside the U.S., a TPS beneficiary must still be able to show their underlying eligibility for an adjustment of status. What that means is they must be able to show both that they were inspected and admitted into the U.S. and that they are maintaining valid nonimmigrant status at the time of their adjustment application. For this reason, an individual who entered the U.S. without inspection and was later approved for TPS may find themselves ineligible to apply for permanent residence through an adjustment of status, even if they are otherwise eligible for a green card in one category or another.
In 2021, the Supreme Court granted certiorari in the matter of Sanchez v. Mayorkas to resolve a disagreement between the federal circuit courts on the issue of whether an individual who originally entered the U.S. without inspection was later deemed properly admitted as a necessary function of their attainment of TPS. In its decision, SCOTUS held that the concepts of “admission” and “status” are wholly separate in immigration law, and found that the grant of TPS does not cure an individual’s admission into the U.S. for the purpose of green card eligibility. In other words, an individual who entered the country unlawfully and was then granted TPS is temporarily granted nonimmigrant status and is protected from removal proceedings while the TPS designation remains, but is not eligible to apply for permanent residence through an adjustment of status (AOS).
In general, the eligibility for AOS relates back to the applicant’s most recent entry from abroad. However, in 2020 under the Trump Administration, USCIS adopted a policy that TPS beneficiaries who were paroled upon their return to the U.S. with travel authorization approved by USCIS were not considered “inspected and admitted” for the purposes of AOS eligibility. This meant that an individual who entered the U.S. unlawfully but was still granted TPS designation was still considered ineligible for an adjustment of status to permanent residence by virtue of their initial unlawful entry, even if they traveled abroad and re-entered the U.S. lawfully. This policy was reversed under the Biden Administration in 2022, re-opening the path to permanent residency for TPS beneficiaries who are otherwise eligible for permanent residency when they return to the U.S. with travel authorization from USCIS. With this strategy in mind, it is important to note that TPS beneficiaries may travel internationally and return to the U.S. in TPS status only if they first obtain authorization from USCIS (TPS Travel Authorization Form I-512T).
TPS beneficiaries are advised to never depart the U.S. without first obtaining the I-512T TPS Travel Authorization document, as this could be deemed an abandonment of their TPS and they may not be able to re-enter the country by other means. Importantly, admission to the U.S., even with an approved travel authorization document, is never guaranteed and CBP officers may still use their discretion to deny entry to any noncitizen traveler. Ultimately, it is of great importance for TPS beneficiaries who wish to remain in the U.S. long-term to establish an immigration strategy with the assistance of legal counsel to help ensure they are able to continue residing in the U.S. when the TPS designation for their home country has been lifted. Considering the substantial expansion of TPS eligibility in recent years, attorneys practicing in all sub-categories of U.S. immigration law are likely to see an increase in the number of their clients who are TPS eligible and should be prepared to advise them on the immigration strategies that will be most beneficial to their clients’ long-term goals beyond the short-term protections provided by TPS designation.
While Biden has failed to pass any comprehensive immigration reform and still has a long way to go, this administration has been making small enhancements, much like these changes to the TPS program, to smooth pathways for immigration. The expansion of TPS designations combined with the 2022 policy reversal on previous unlawful entry has increased the number of individuals eligible for TPS and has widened the availability for those to apply for an adjustment of status. Individuals and immigration counsel need to stay abreast of these small changes to be able to apply the latest updates that may benefit individual situations.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the April 10, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
