Temporary Protected Status (TPS) holders who entered the United States illegally may now be eligible to ad adjust their status to “Lawful Permanent Resident” (LPR), according to a recent groundbreaking decision by a United States Court of Appeals. The decision serves as a stunning departure from previous Unites States Citizenship and Immigration Services (USCIS) policy requiring TPS holders to first leave the United States before applying for LPR status, a process complicated by potential ten year bars from re-entry and additional obstacles facing those immigrants with previously unlawful presence in the country. Attorney Ryan Korsunsky of Wites Law Firm believes that the Court’s decision is a step in the right direction. “USCIS policy on adjusting TPS status should account for the uniqueness of an individual’s situation, and not treat all immigrants alike based solely on how they entered the country, which in many cases was over a decade ago.”
TPS holders come to the United States from foreign countries experiencing unsafe or extraordinary conditions, including armed conflict and environmental disasters. Currently USCIS designates immigrants from El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria as eligible to apply for TPS if they meet additional statutory requirements. During a designated temporary period TPS holders are not removable from the Unites States, can be employed by obtaining an Employment Authorization Document (EAD), and may be granted authority to travel. Most importantly, as it relates to the Department of Homeland Security (DHS), USCIS regulation states a TPS holder “cannot be detained by DHS on the basis of his or her immigration status.”
The case, which came from the Sixth Circuit Court of Appeals, is called Flores, et al. v. USCIS, and involves Saady Suazo, a Honduran national granted TPS in 1999 after entering the United States without inspection (EWI) in 1998. Suazo married a U.S. citizen in 2010, with whom he is raising a minor child, and applied to adjust his immigration status on the basis of his marriage. Suazo’s application was denied by USCIS in accordance with the policy preventing those who entered the country illegally from adjusting their status to LPR. The Court of Appeals reversed the decision, giving Suazo the requisite eligibility to apply for an adjustment to LPR status. The Court found that the TPS statute allowed for Suazo to be considered in lawful nonimmigrant status for the purpose of adjusting his status. The Court also referred to the U.S.’s current immigration system a “archaic and convoluted” and described the process Suazo would have faced under previous USCIS policy as “a waste of energy, time, government resources, and will have a negative effect on his family-United States citizens.”
Judge Damon J. Keith, the author of the Court’s opinion, also denounced the term “alien” as offensive and demeaning, urging Congress to eliminate it entirely from the United States Code. Attorney Marc Wites of Wites Law Firm, a Florida based law firm located in Lighthouse Point, which provides immigration services, echoes Judge Keith’s sentiment, observing that “many of these TPS holders have established lives, families, and careers in the U.S., and have worked hard for the right to become permanent residents. It is staggering how often we encounter clients whose original immigration statuses restrict them, instead of reflecting what they have accomplished since coming to the U.S.”
Wites’ partner, Attorney Marc Wites, stresses the purpose of the status in noting that “TPS provides reprieve to immigrants coming from chaotic and often traumatic situations in their home countries. For many of them, this change could mean they don’t have to fear being forced to go back without a way to re-enter the U.S.” Lawyers who represent immigrants are hoping the decision will soon be implemented by USCIS, providing a pathway to permanent residency for many deserving individuals. President Obama has not yet indicated whether he will appeal the Sixth Circuit decision, nor has any other U.S. Circuit Court of Appeals arrived at the same conclusion on TPS holders. However, the persuasive analysis and strong language used by the Sixth Circuit Court indicates a possible shift in USCIS policy once President Obama takes a public stance on the issue. Considering Obama’s strong support of the 2013 “Border Security, Economic Opportunity, and Immigration Modernization Act,” and his implementation of the Supreme Court’s ruling on the Defense of Marriage Act to USCIS policy, it is likely TPS holders across the country will soon be eligible to apply for LPR status from within the United States.
Wites Law Firm is a law firm based in Lighthouse Point, Florida, that represents individuals and their families in immigration matters, personal injury and wrong death cases, investment loss disputes, and class actions.