Guidance for Practitioners on Adjustment of Status for TPS Recipients in the Sixth and Ninth Circuits
Decisions in the Sixth and Ninth Circuit Courts of Appeal have opened the door for many individuals who entered the United States without inspection, but subsequently received Temporary Protected Status (TPS), to adjust to lawful permanent resident status. In the Sixth Circuit case, Flores v. USCIS, the court ruled that a grant of TPS satisfies the admission-related requirement of Section 245(a) of the Immigration and Nationality Act (INA). 718 F.3d 548 (6th Cir. 2013). Four years later, the Ninth Circuit in Ramirez v. Brown, similarly determined that a TPS recipient has satisfied the inspection and admission requirement for purposes of adjustment of status under INA § 245(a). 852 F.3d 954 (9th Cir. 2017). The frequently asked questions below review how TPS recipients residing in the jurisdictions of these circuits may benefit from the implementation of these decisions by USCIS.
How might a TPS recipient qualify to adjust status under INA § 245(a)?
The majority of TPS holders who will benefit from the new USCIS policy are immediate relatives applying to adjust status. Although theoretically, TPS recipients who are preference immigrants might also qualify to adjust under INA § 245(a), it will be an unlikely scenario because preference category relatives are also required to show that they have never worked without authorization and have continuously maintained lawful immigration status. This policy applies to qualified TPS holders who are beneficiaries of approved I-130 petitions with an available visa, as well those seeking to file an I-485 adjustment application concurrently with an I-130.
Which TPS clients can benefit from the new USCIS policy?
In order to benefit from the new policy, an eligible adjustment applicant must be residing in a state that is under the jurisdiction of either the Sixth or Ninth Circuit. This impacts clients who live in one of the following 13 states:
At this time, TPS holders currently residing in other states are not eligible to benefit from this policy. However, TPS recipients who move into one of the 13 qualifying states may then become eligible to adjust status under INA § 245(a).
How is USCIS implementing this policy?
USCIS should accept for processing any new Form I-485 from eligible TPS recipients residing in the 13 relevant states. The USCIS Policy Manual already explicitly recognizes that TPS recipients residing within the jurisdiction of the Sixth Circuit are considered admitted and may therefore qualify for adjustment under 245(a) if all other requirements are met. See Vol. 7, Part B, Chap. 2, n. 56, at www.uscis.gov/policymanual/Print/PolicyManual-Volume7-PartB.html. Although the manual has not yet been updated to reflect the Ninth Circuit decision, a citation to Ramirez v. Brown and a copy of the decision should be adequate legal authority to document clients’ eligibility to file. In addition to citing to the relevant decision, make sure to indicate in your cover letter that, despite having entered without inspection, the client qualifies to adjust under INA § 245(a) because he or she was subsequently admitted by virtue of a grant of TPS status.
What should I do if my client qualifies to benefit from one of these decisions, but USCIS put the case on hold, issued a Request for Evidence, or denied it?
For some time, USCIS had been accepting I-485 applications filed by Sixth Circuit residents and holding them for adjudication. Likewise, prior to the Ramirez decision becoming final, a small number of adjustment applications from Ninth Circuit residents had been accepted but placed on “policy hold.” Qualifying TPS recipients with pending I-485s that were previously on hold should now be adjudicated by USCIS.
If you receive a Request for Evidence asking for proof of admission, respond by sending USCIS a copy of the relevant circuit court decision (Ramirez or Flores). For cases in the jurisdiction of the Sixth Circuit, consider also including the relevant text from the USCIS Policy Manual referenced above.
Note that USCIS requires the adjustment applicant to have met all 245(a) adjustment eligibility criteria (i.e. TPS grant constituting an admission; visa immediately available; and not inadmissible) at the time the application was filed. If your client was not eligible at the time of filing but meets the criteria now, he or she may file a new adjustment application. If USCIS erroneously denied your client’s adjustment application despite eligibility at the time of filing, you may file a motion to reopen or reconsider. If the 30-day filing deadline has passed, consider arguing that there is good cause for filing late or asking USCIS to reopen or reconsider on its own motion based on the change in law.
What if my client’s TPS has expired or is terminated? Will the fact that he or she received TPS in the past still satisfy the “admission” requirement for 245(a) adjustment?
There is no case law on this issue and CLINIC recommends that clients who are eligible to file for 245(a) adjustment while still in valid TPS status do so before the status expires. Both the Flores and Ramirez decisions dealt with individuals in current TPS status and both courts relied on the language of INA § 244(f)(4) in finding that TPS qualifies as an admission for purposes of adjustment. That section of the INA refers specifically to the period of time during which the person is granted TPS. Based on the statutory language, DHS is likely to argue that TPS only constitutes an admission while the applicant remains in valid TPS status, and that the TPS holder reverted to an unadmitted status once TPS was terminated or expired. If your client’s TPS will be expiring soon or there is reason to believe it will be terminated, he or she should apply for adjustment as soon as possible. Note that clients within the Sixth and Ninth Circuits who have already traveled or may travel on advance parole will have an alternate basis for adjustment eligibility under 245(a). This is discussed in more detail below.
What if my TPS client appears to be eligible for adjustment but is in removal proceedings?
TPS recipients who are in removal proceedings cannot apply for adjustment of status with USCIS because the immigration judge has exclusive jurisdiction. They will need to file their adjustment application with the immigration court. A TPS recipient with a final outstanding order of removal would need to move to reopen the court proceeding in order to be able to seek adjustment of status.
Is there anything that can be done for TPS clients who live outside the jurisdiction of the Sixth and Ninth Circuits?
At this time, only TPS holders who are residents of states under the jurisdiction of the Sixth or Ninth Circuit are eligible to adjust status under current policy. Of course, future decisions from other circuit courts may expand eligibility to TPS recipients in other states. For now, consider whether your TPS clients who are immediate relatives might become eligible for 245(a) adjustment based on travel with advance parole. TPS recipients are eligible to apply for advance parole to travel abroad, and upon their return they are “paroled” into the United States. Because 245(a) eligibility can be based on entry with admission or parole, a TPS recipient who returns to the United States after travel on advance parole may qualify to adjust status. Keep in mind that the same limitations on 245(a) eligibility as noted above apply – unless the adjustment applicant is an immediate relative, admission or parole is not enough – the applicant will still be ineligible for 245(a) adjustment if she or he was ever in the United States unlawfully or worked without authorization. Also note that current USCIS processing times for advance parole are between five and six months. And, as is always the case with advance parole, USCIS cautions that advance parole does not guarantee re-entry; Customs and Border Protection (CBP) has the authority to deny entry.
The fate of TPS for currently designated countries is uncertain. Be aware of any changes to TPS including the possibility that the administration will terminate the TPS designation for your client’s home country. In light of this uncertainty, TPS beneficiaries should be carefully screened to determine whether they might be eligible for another immigration benefit in the event that they lose TPS status.