Is the grant of Temporary Protected Status, or TPS, considered an “inspection and admission” for purposes of eligibility to file for adjustment of status under INA § 245(a)? Currently, the U.S. circuit courts are split on this issue. The Sixth, Eighth and Ninth Circuits have held that a grant of TPS is an admission for adjustment purposes. The Third and Eleventh Circuit Courts have held that it is not. As a result, U.S. Citizenship and Immigration Services, or USCIS, is bound only to recognize a TPS grant as an admission for 245(a) adjustment applicants residing in the jurisdiction of the Sixth, Eighth or Ninth Circuit. After years of inconsistent treatment, the U.S. Supreme Court has agreed to review the issue.

Plaintiffs in Sanchez v. Sec’y of Dept. of Homeland Security, 967 F.3d 242 (3rd Cir. 2020), have appealed the Third Circuit’s ruling to the Supreme Court, which granted a petition for a writ of certiorari on Jan. 8, 2021. The Supreme Court is poised to issue a decision resolving this question by June 2021.

Until then, TPS holders who did not initially enter the United States with inspection but are basing their eligibility for adjustment on their TPS status and residence within the Sixth, Eighth or Ninth Circuit, should be advised that a decision from the Supreme Court could reverse the law in those jurisdictions. A holding in favor of the Third Circuit’s interpretation would likely be applied prospectively to any adjustment applications that are pending on the date the opinion is issued.

For more information on adjustment of status options for TPS holders, please see our updated practice advisory here.