After years of uncertainty, the Supreme Court has finally resolved the question of whether a grant of Temporary Protected Status (TPS) is considered an admission for purposes of INA § 245(a) adjustment in cases where the TPS recipient initially entered the United States without inspection. Prior to the decision in Sanchez v. Mayorkas, the Sixth, Eighth, and Ninth Circuit Courts of Appeal had held that TPS is considered an admission that would allow someone who previously entered without inspection to seek permanent resident status through adjustment of status. That presumes that the person qualified as an “immediate relative” and had an approved I-130 petition. The Third, Fifth, and Eleventh Circuit Courts of Appeal had reached the opposite conclusion.

In a unanimous decision issued on June 7, 2021, the Court held that the petitioner, Jose Santos Sanchez, who entered the United States unlawfully prior to obtaining TPS, was not “admitted” after he was subsequently granted TPS. His employment-based application for adjustment was denied based on U.S. Citizenship and Immigration Service’s determination that he had not been admitted. The Third Circuit affirmed that interpretation and the Supreme Court agreed. The Court reasoned that “lawful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter.”

Writing for the majority, Justice Kagan agreed that while the statute states that a TPS recipient who applies for permanent residency is treated as having nonimmigrant status, which the Court characterizes as “the status traditionally and generally needed to invoke the LPR process under § 245 — that provision does not aid the TPS recipient in meeting § 245’s separate admission requirement.” Adjustment of status requires an admission, defined under INA 101(a)(13)(A), and it was interpreted by the Court as requiring a lawful physical entry.

The Court was unconvinced by the petitioner’s argument that the grant of nonimmigrant status requires admission. Although the TPS statute references TPS recipients as being considered nonimmigrants for purposes of 245(a) adjustment, “the immigration law nowhere states that admission is a prerequisite of nonimmigrant status. So there is no reason to interpret the TPS provision’s conferral of nonimmigrant status as including a conferral of admission."

The opinion notes that “there are immigration categories in which individuals have nonimmigrant status without admission,” and cites U status as one example. See INA § 101(a)(15)(U). There are concerns that the language in the decision and its reasoning could have consequences for U nonimmigrants who entered without inspection prior to obtaining U status and who seek to adjust status under 245(a) rather than 245(m), the provision specific to U adjustment.

A footnote in the opinion stated that the Court did not express a view on whether return with advance parole enables a TPS recipient to become eligible for adjustment of status absent any other bar under § 245. The current USCIS policy, implemented under the Trump administration, is that advance parole travel after Aug. 20, 2020, is not considered admission or parole that would satisfy the 245(a) requirement of admission or parole. This decision would not prevent USCIS from reversing its policy in the future.

How will this affect TPS recipients in the Sixth, Eighth, and Ninth Circuits whose adjustment applications, based on the prior law, are still pending? The Supreme Court decision is not effective until the certified judgment is issued, which should happen approximately 32 days after the opinion was announced. Immigration advocates are asking the Biden administration to delay implementing the decision and continue to adjudicate pending applications until the Supreme Court’s mandate to the lower court is issued. CLINIC has heard reports that some adjustment interviews in the Sixth, Eighth, and Ninth Circuits have been cancelled in the wake of the ruling; we will continue to monitor implementation of the decision.

CLINIC does not believe that lawful permanent residents (LPRs) who adjusted under the prior law in the Sixth, Eighth or Ninth Circuits are likely to have their LPR status rescinded based on the recent decision. DHS has not indicated whether they will issue further guidance to clarify. Note, however, that in the context of naturalization eligibility, the current USCIS Policy Manual states:

“in general, a noncitizen who was lawfully admitted for permanent residence according to the applicable laws at the time of his or her initial entry and admission or subsequent reentry and admission (but would be ineligible for LPR status today based in a change in law) is still considered to have been lawfully admitted for permanent residence for purposes of INA 319. This does not apply if the controlling law specifically states otherwise.” USCIS Policy Manual, Vol. 12, Part D., Chapter 2. See 8 CFR 316.2(b).

This disappointing decision will deprive many TPS recipients who entered without inspection the opportunity to become permanent residents. However, it does not impact TPS recipients who initially entered with inspection. Proposed legislation before Congress that would provide a path to lawful permanent residence and citizenship to TPS recipients — the American Dream and Promise Act of 2021 (H.R. 6) and the Safe Environment from Countries Under Repression and in Emergency (SECURE) Act — would amend the INA to clarify that a TPS grant is considered an admission for adjustment purposes.

CLINIC will continue to provide updates as new developments arise. For more resources related to TPS, visit CLINIC’s TPS Webpage.