Green Card Denied for Immigrant with Temporary Protected Status
TPS stands for Temporary Protected Status. It is a temporary immigration status granted by the U.S. government to eligible foreign nationals from designated countries experiencing dangerous conditions, such as armed conflicts and natural disasters, that prevent them from returning safely. TPS allows individuals to live and work in the U.S. for a limited time and may be extended or terminated by the U.S. government depending on the conditions in the designated country.
In a unanimous opinion, the U.S. Supreme Court held that a person who enters the U.S. unlawfully is not eligible for an adjustment to permanent resident status, even if the person was granted temporary protected status. The ruling has implications for businesses seeking to sponsor employment-based green cards for certain workers.
Foreign nationals from designated countries experiencing dangerous conditions, such as armed conflicts and natural disasters, are eligible for temporary protected status (TPS) granted by the federal government. Currently, the list includes 12 countries, namely El Salvador, Haiti, Honduras, Myanmar, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Venezuela, Ukraine, and Yemen. TPS allows individuals to live and work in the U.S. for a limited period of time.
In Sanchez v. Mayorkas, a married couple who entered the U.S. unlawfully from El Salvador in 1997 to escape unsafe conditions are involved. The husband worked in the U.S. without authorization before obtaining TPS in 2001 when the U.S. government made El Salvador a designated country under the program due to a series of devastating earthquakes. Despite the couple’s application for lawful permanent resident (LPR) status through the husband’s employer in 2014, the application was ultimately denied as the couple did not lawfully enter the country, with USCIS stating that “TPS provided no way around that bar.”
The USCIS decision was upheld by the high court. The court stated that the TPS program provides foreign nationals with nonimmigrant status and does not admit them, which means that the conferral of TPS does not make an unlawful entrant eligible for lawful permanent resident status. However, the court acknowledged that immigration law does offer a path for a foreign national who is lawfully present in the U.S. on a temporary basis to obtain an “adjustment of status” and become a permanent resident.
Adjustment of Status
Adjustment of status is the process by which a foreign national who is physically present in the United States can become a lawful permanent resident (LPR) without having to go abroad and apply for an immigrant visa at a U.S. consulate. It is an application made to the U.S. Citizenship and Immigration Services (USCIS) to change a person’s non-immigrant status to immigrant status. If approved, the individual is granted a green card and becomes a lawful permanent resident of the United States.
Here, the Supreme Court said, with some exceptions, “a nonimmigrant’s eligibility for such an adjustment to permanent status depends … on an ‘admission’ into this country.” Specifically, immigration law requires an applicant for LPR status to be “inspected and admitted or paroled into the United States.”
In Sanchez, the petitioner’s employer applied for a visa for him as a skilled worker, and immigration officials approved the petition for LPR status for him and his wife. But the federal government subsequently denied their application to use the adjustment-of-status process because they initially entered the country without authorization. The high court sided with the government, holding that the Immigration and Nationality Act “generally requires a lawful admission before a person can obtain LPR status.” The petitioner “was not lawfully admitted, and his TPS does not alter that fact,” Justice Elena Kagan wrote for the court. “He therefore cannot become a permanent resident of this country.”
With over 400,000 individuals in the US holding TPS status, there are few options available for those seeking permanent residency without a family member or employer willing to sponsor them. For those who did enter the US without authorization, the recent Supreme Court ruling means that they will have to continue living with temporary status, which is renewable every 18 months until the government ends the TPS designation for their country of origin. Furthermore, a noncitizen who entered the country unlawfully and is seeking a green card may face up to a 10-year ban on re-entry.
According to some immigration law experts, the TPS program is intended to offer temporary relief rather than permanent residency. However, other experts contend that many TPS beneficiaries have resided in the U.S. for decades and have formed businesses and families during that time. The Supreme Court justices based their decision on the language of the statute as crafted by Congress. Justice Brett Kavanaugh warned that it is essential to be cautious when modifying the immigration statutes, particularly since Congress has a fundamental role in this regard.
“The Supreme Court, however indirectly, has reinforced that only Congress can provide a permanent solution, even though the executive branch may have some authority to grant temporary legal status to those who crossed the border unlawfully,” said Steve Vladeck, a Supreme Court analyst for CNN and a professor at the University of Texas School of Law.
The House of Representatives approved two bills on March 18 to create pathways to citizenship or legal status for millions of undocumented immigrants, including “Dreamers” and agricultural workers. However, the likelihood of these bills obtaining enough Republican backing in the Senate to pass and be enacted as law is low.