Termination of TPS – Are There any Other Options Available - Articles

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Posted by: Chay Sengkhounmany on Mar 20, 2018

The Trump Administration has revoked the Temporary Protected Status (TPS) designations for four countries and is set to review the designations for several more countries in 2018. The TPS revocations will affect over 300,000 people who will lose TPS by the end of 2019. Many of these TPS holders have lived in the United States for decades and have developed significant family and economic ties to this country. In the ensuing months prior to the termination of their TPS status, TPS recipients must explore other immigration options. Termination of TPS means they will be undocumented and not be authorized to work or stay in the United States. This article will cover two specific options as they relate to TPS. Keep in mind that options other than the two discussed may be available and should also be explored.

A.   Adjustment of Status

To be eligible to adjust status under INA § 245(a) to legal permanent residence, an individual must have been “inspected and admitted or paroled” into the United States. He or she must be admissible, and an immigrant visa must be immediately available. Generally, those who entered without inspection cannot adjust status under INA § 245(a) because they have not been inspected and admitted or paroled. However, the Sixth Circuit[1] and Ninth Circuit[2] Courts of Appeal have held an individual holding TPS status who initially entered without inspection will be considered to have been inspected and admitted for the purposes of adjusting status under INA § 245(a).

In making their decisions, the circuit courts analyzed INA § 244(f)(4), which states:

(f) Benefits and Status During Period of Temporary Protected Status. — During a period in which an alien is granted temporary protected status under this section—

(4) for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.

The courts held the plain meaning of the phrase “for purposes of adjustment of status under section 245” applies to all of section 245, and so a person granted TPS “shall be considered as being in, and maintaining, lawful status as a nonimmigrant” for purposes of adjustment of status under section 245(a).[3]  Therefore, the courts concluded a grant of TPS must constitute an “admission” for adjusting status.Individuals who meet the following requirements are eligible to adjust their statuses because of the rulings in Ramirez and Flores:  1) those living in a state within the jurisdiction of the Sixth and Ninth Circuits; 2) those currently in TPS status; 3) those who are immediate relatives of U.S. citizens, i.e. children and spouses of U.S. citizens and the parents of U.S. citizens who are 21 or older; and 4) those who initially entered without inspection and would otherwise be eligible for adjustment of status to lawful permanent resident status.

The issue of whether a person whose TPS was terminated or expired continues to satisfy the “inspected and admitted” requirement remains unresolved. The Ramirez and Flores cases involved plaintiffs who were currently in TPS status. The language of INA § 244(f)(4), which the courts based their decisions on, refer specifically to the period in which a person is granted TPS status. An American Immigration Council (AIC) Practice Advisory, “Court Decisions Ensure TPS Holders in Sixth and Ninth Circuits May Become Permanent Residents”, dated September 16, 2017, states USCIS will likely deny an adjustment of status application by relying upon the statutory language -  “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).  Additionally, the AIC Practice Advisory states USCIS may cite Medina v. Beers, 65 F.Supp. 3d 419, 431 (E.D. Pa. 2014), which held TPS recipient’s “failure to maintain [TPS] status—by failing to re-register for TPS or by otherwise making him or herself ineligible for TPS—would be grounds for denying an adjustment to lawful permanent resident status.” Additionally, the argument that a TPS holder would “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), which held that if temporary resident status under IRCA was terminated, an applicant for adjustment of status was no longer considered admitted.

In the jurisdictions outside of the Sixth and Ninth Circuits, USCIS does not consider a grant of TPS to be an admission for adjustment purposes. Also, the Eleven Circuit Court of Appeal has held that TPS is not an admission.  For those TPS holders who entered without inspection living in jurisdictions outside of the Sixth and Ninth Circuits, adjustment of status based on being inspected and admitted is not an option. 

B.    Advance Parole

An alternative option for those outside of the Sixth and Ninth Circuit is travelling on advance parole. Advance parole allows the person to have a lawful means of returning to the United States after a brief trip abroad. TPS holders are specifically allowed by statute to travel while in TPS status.[4]  The regulations do not require any specific reasons for travel[5], and advance parole for TPS holders have been granted for personal and business reasons. A person who travels and returns on an advance parole will not trigger the three-or-ten-year unlawful presence bars because he or she has not made a legal departure.[6]  Upon return to the United States with advance parole, a TPS holder will be paroled in and thus, eligible for adjustment of status (as long as they meet the other requirements) without the need for an unlawful presence waiver. Bear in mind that travelling on advance parole may be risky and being granted advance parole does not guarantee admission back into the United States.

 

Countries currently designated for TPS

 

Terminates

Extended

Re-registration period

TPS designation Date

Number of people affected

El Salvador

9/9/2019[7]

 

01/18/2018 – 03/19/2018

03/09/2001[8]

263,280

Haiti

07/22/2019[9]

 

01/18/2018 – 03/19/2018

01/21/2010[10]

58,550

Honduras

 

07/05/2018[11]

12/15/2017-02/13/2018

01/05/1999[12]

86,000

Nepal

 

07/05/2018[13]

10/26/2016-12/27/2016

06/24/2015[14]

8,950

Nicaragua

01/05/2019[15]

 

12/15/2017-02/13/2018

01/05/1999[16]

5,305

Somalia

 

09/17/2018[17]

01/17/2017-03/20/2017

09/16/1991[18]

499

South Sudan

 

05/02/2019[19]

09/21/2017-11/20/2017

11/03/2011[20]

70

Sudan

11/02/2018[21]

 

10/11/2017-12/11/2017

11/04/1997[22]

1048

Syria

 

09/30/2019[23]

 

03/29/2012[24]

6,916

Yemen

 

09/03/2018[25]

01/04/2017-03/06/2017

09/03/2015[26]

1116

 

Author Chay Sengkhounmany formed her own law firm, Sengkhounmany Law, about four years ago after working for Legal Aid Society of Middle Tennessee and the Cumberlands for 10 years, seeking humanitarian immigration relief, such as VAWA, T visas and U visas. Sengkhounmany holds a law degree from Georgia State University College of Law. She may be reached at chay@senglaw.com or 615-667-0270.


[1] See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013)

[2] See Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017),

[3] Ramirez, 852 F.3d at 962; Flores, 718 F.2d at 553.

[4] INA § 244(f)(3).

[5] 8 CFR § 244.15.

[6] Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

[7] 83 Fed. Reg. 2654 (Jan. 18, 2018).

[8] 66 Fed. Reg. 14214 (Mar. 9, 2001).

[9] 83 Fed. Reg.  2648 (Jan. 18, 2018).

[10] 75 Fed. Reg. 3476 (Jan. 21, 2010).

[11] 82 Fed. Reg. 59630 (Dec. 15, 2017).

[12] 64 Fed. Reg. 524 (Jan. 5, 1999).

[13] 81 Fed. Reg.  74470 (Oct. 26, 2016).

[14] 80 Fed. Reg. 36346 (Jun. 24, 2015).

[15] 82 Fed. Reg. 59636 (Dec. 15, 2017).

[16] 64 Fed. Reg. 526 (Jan. 5, 1999).

[17] 82 Fed. Reg. 4905 (Jan. 17, 2017).

[18] 56 Fed. Reg. 46804 (Sept. 16, 1991).

[19] 82 Fed. Reg. 44205 (Sept. 21, 2017).

[20] 76 Fed. Reg. 63629 (Oct. 13, 2011).

[21]  82 Fed. Reg. 47228 (Oct. 11, 2017).

[22] 62 Fed. Reg. 59737 (Nov. 4, 1997).

[23] https://www.dhs.gov/news/2018/01/31/secretary-homeland-security-kirstjen-m-nielsen-announcement-temporary-protected.

[24] 77 Fed. Reg. 19026 (March 29, 2012), and correction at 77 FED. REG. 20046 (April 3, 2012).

[25] 82 Fed. Reg. 859 (Jan. 4, 2017).

[26] 80 Fed. Reg. 53319 (Sept. 3, 2015).