District Court Finds TPS Status Constitutes Admission
By Susan Schreiber
Can clients who entered the U.S. without inspection but then subsequently gained Temporary Protected Status (TPS) be considered admitted? If so, can they now qualify for adjustment of status under INA § 245(a), assuming they have an independent means of immigrating? In June 2013, the Sixth Circuit said “yes” to this question, finding that a grant of TPS satisfies the admission-related requirement of 245(a). Flores v USCIS, 718 F.3d 548 (6th Cir. 2013). Now, one year later, the District Court for the Western District of Washington has issued a decision agreeing with the Sixth Circuit, similarly concluding that persons with TPS may qualify to adjust status under INA § 245(a). Ramirez v Dougherty, C13-1236Z (W.D. WA, 2014).
In Ramirez, a TPS grantee from El Salvador who first entered the United States without inspection applied to adjust status under 245(a) through his U.S. citizen spouse. USCIS denied the application, finding that the applicant was not "inspected and admitted or paroled" as required by the statute. Upon review, the court found that the TPS provision at INA § 244(f)(4), which provides that "for purposes of adjustment of status under section 245 and change of status under 248, the alien shall be considered as being in, and maintaining lawful status as a nonimmigrant," provides a pathway for a TPS beneficiary to qualify for LPR status under 245(a).
In reaching its decision, the court also relied on a Ninth Circuit decision finding that enrollment in the Family Unity Program constitutes an admission within the meaning of the INA. Garcia-Quintero v Gonzalez, 455 F.3d 1006 (9th Cir. 2006). Comparing TPS to Family Unity, the court reasoned that both programs require an assessment of inadmissibility, provide an actual immigration status, provide protection from removal for the duration of the status, and contemplate adjustment of status for program beneficiaries.
To date, USCIS has not indicated a willingness to recognize the grant of TPS as an admission. Only eligible TPS grantees living within the jurisdiction of the Sixth Circuit (Tennessee, Ohio, Michigan and Kentucky) can take advantage of the Flores decision to adjust status. Outside of the Sixth Circuit, TPS grantees who travel on advance parole may qualify to adjust status under 245(a) by virtue of being "paroled" upon return from travel abroad. Note that for both groups of TPS grantees, however, 245(a) adjustment will likely be limited to immediate relatives, who qualify to adjust under this section simply based on entry with inspection and admission or parole. Because preference category immigrants who seek to adjust under 245(a) are subject to the additional requirements of (a) having always remained in status, and (b) never having worked without authorization, many TPS grantees won't qualify to adjust status due to pre-TPS status entry without inspection, visa overstay, or unauthorized employment.