Possible Limits to “TPS as an Admission”
Recent guidance from U.S. Citizenship and Immigration Services indicates that the agency is no longer placing a hold on the adjudication of applications for adjustment of status filed by recipients of Temporary Protected Status, or TPS, in the jurisdictions of the Sixth and Ninth Circuits. This updated guidance comes in light of those federal appellate courts’ decisions in Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013) and Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017).
This development raised the question among some affiliates: if a person’s TPS expires or is terminated, does the fact that TPS was granted in the past still satisfy the “admission” requirement for adjustment of status?
CLINIC urges caution in pursuing this strategy. Both the Flores and Ramirez courts rely on the language of INA § 244(f)(4) to hold that TPS qualifies as an admission for purposes of adjustment of status. This statute states:
“During the period in which an alien is granted temporary protected status under this section - … (4) for purposes of adjustment of status under section 245 … the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” INA § 244(f)(4) (emphasis added)
Notice that the beneficial clause for purposes of adjustment of status is limited to the period in which the person is granted TPS. In other words, the Department of Homeland Security may argue that TPS only constitutes an admission while the applicant is in valid TPS status, and that the TPS holder reverts to an unadmitted status if TPS is terminated or expired. The idea that a TPS holder might “revert” to an unadmitted status is bolstered by the Ninth Circuit’s decision in United States v. Hernandez-Arias, 757 F.3d 874 (9th Cir. 2014). In that case, the Ninth Circuit held that if temporary resident status under IRCA was terminated, an applicant for adjustment of status was no longer considered admitted. While the reasoning of Hernandez-Arias does not apply directly in the TPS context, it is instructive when considering the limitations on TPS-based adjustments of status.