Temporary Protected Status in Danger: Time to Explore Other Options

By Ben Loveman

The Ninth Circuit Court of Appeals recently overturned a lower Court order preventing the Department of Homeland Security from ending Temporary Protected Status (TPS) for persons from Honduras, El Salvador, Nepal, Nicaragua, and Sudan.  The decision paves the way for DHS to continue with its plan to terminate TPS protection for nationals of these countries.  This means that DHS will now be able to end TPS protection for hundreds of thousands of TPS holders. The decision obviously has huge ramifications for the TPS holders and their families here in the United States.  For those holding TPS status, there are likely alternative options to securing permanent immigration status. It is crucial for those potentially affected to seek the advice of an experienced immigration attorney now to explore potential options.

Without TPS, most of these people will be subject to removal proceedings where an Immigration Judge will determine if they should be deported.  DHS has previously indicated that if the Court ruled in its favor it would allow a winding down period.  For Nationals of El Salvador, this period is 365 days from the date of the order from the Ninth Circuit and for nationals of Honduras, Nepal, Nicaragua, and Sudan, the period is 120 days.  The potential termination of TPS is also likely to be impacted by the Presidential election. A new president may restore TPS protections.  However, TPS holders need not wait for the election for their fates to be decided. Current laws provide several alternative routes to permanent status in the U.S.  Options might include family or employment-based petitions.

For TPS holders residing or who move to the territorial jurisdiction of the Ninth or Sixth Circuit Court of Appeals (California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, and Alaska, Tennessee, Ohio, Michigan, and Kentucky), their TPS status might make them immediately eligible to apply for adjustment of status if they have a U.S. citizen spouse or U.S. citizen child (21 years or older) to file an immigrant petition on their behalf. This is because Courts in these two jurisdictions have held that a grant of TPS status constitutes an ‘admission’ under Section 245(a) of the Immigration & Nationality Act.  This is crucial because eligibility for adjustment of status requires having been admitted or paroled and many TPS holders entered the country without inspection.

TPS holders who are covered by INA Section 245(i) might be eligible for adjustment of status regardless of their state of residence if they have an approved immigrant visa petition.  The details of 245(i) eligibility are beyond the scope of this article but suffice to say that to qualify a person must be the beneficiary of a petition filed on or before January 14, 1998 or, prior to April 30, 2001 (if physically present in the United States on December 20, 2000).

TPS holders who traveled on advance parole might be eligible for adjustment of status as their parole to the U.S. may satisfy INA Section 245(a)’s requirement of admission or ‘parole.’  There is uncertainty regarding this route to eligibility as the Trump Administration has limited this pathway. Nonetheless, it remains a viable avenue to explore for those who traveled with advance parole.

For TPS holders nationwide, other options should be explored. Many TPS holders have had TPS (or DACA) since they were minors. As a result, they may not have accrued ‘unlawful presence’ and could be eligible for an immigrant visa abroad, whether through family or employment-based petitions, without needing a waiver. This is because unlawful presence is not counted for minors and/or during TPS or DACA status. The lack of unlawful presence means that with an approved immigrant petition and available visa, a person could schedule an appointment at the U.S. Embassy in their home country and return in short order to permanent resident status.

For persons without unlawful presence, nonimmigrant visa options also are an option. This could include H-1B, L-1, or F-1 visas. Persons eligible for these categories could schedule an appointment abroad and, assuming they are fully eligible, should be able to return shortly after their interview in lawful status.

Finally, many TPS holders could qualify for residency through a Provisional Unlawful Presence Waiver (I-601A). This process allows beneficiaries of immigrant petitions who are not eligible for adjustment of status and who have unlawful presence exceeding six-months to apply for pre-approval for waiver of the three-year or ten-year bar triggered upon departing the U.S. With strong evidence and argument, the provisional waiver is often approved.

Any person considering any of these options must carefully review their personal and immigration history with an immigration attorney prior to taking any action.   With TPS in jeopardy, it is highly recommended that you or your loved one explore other available options with a reputable attorney as soon as possible.