On January 8, 2021, the United States Supreme Court granted certiorari in Sanchez v. Wolf, a case that addresses whether a grant of Temporary Protected Status (TPS) authorizes eligible non-citizens to apply for lawful permanent residence. A copy of the Petition for Writ of Certiorari can be found here.
Currently, there is a split among the U.S. Circuit Courts regarding this issue. The Sixth and Ninth Circuit have held that a grant of TPS counts as an admission for adjustment of status eligibility. The Eleventh Circuit, however, has held that TPS does not constitute an admission. Sanchez v. Wolf stems from the Third Circuit, which joined the Eleventh Circuit in holding that TPS does not constitute an admission for adjustment of status purposes.
Temporary Protected Status (TPS) is a temporary form of immigration status granted to nationals of certain countries that have been deemed unsafe for return due to armed conflict, environmental disaster, or other extraordinary conditions. United States Citizenship and Immigration Services (USCIS) can grant TPS to eligible nationals already in the United States, which allows them to remain in the country as well as obtain work and travel authorization.
Sanchez v. Wolf raises the question of whether a TPS recipient can apply for adjustment of status. To be eligible for adjustment of status, the applicant must show that they were inspected and admitted or paroled into the United States under Section 245 of the Immigration and Nationality Act (INA). The petitioners in this case argue that an immigrant who has not been admitted and inspected or paroled into the United States should nonetheless be eligible to adjust status if they have been granted TPS.
This U.S. Supreme Court decision will have great consequences for TPS recipients. If the Supreme Court sides with the Eleventh and Third Circuit, TPS recipients who entered the United States unlawfully would not be eligible to apply for lawful permanent residence. Many TPS recipients have been residing in the U.S. for decades, and an unfavorable decision could force them back to their home countries. The case is currently pending, and oral arguments will be heard by the Supreme Court in the coming months.
On September 14, 2020, the United States Court of Appeals for the Ninth Circuit ruled that the Trump Administration is within its authority to end Temporary Protected Status (TPS) for hundreds of thousands of immigrants in the United States. A copy of the decision can be found here. This decision affects citizens from El Salvador, Haiti, Nicaragua, and Sudan.
TPS is a form of relief granted to immigrants in the United States who are citizens of certain countries that the Department of Homeland Security has deemed unable to handle the return of its citizens adequately due to natural disasters, armed conflict, or other extraordinary conditions. A grant of TPS allows the beneficiary to live and work with authorization in the United States and without fear of deportation. A grant of TPS must be renewed during designated periods as well.
According to National Public Radio, “The Trump administration terminated TPS designations of El Salvador, Haiti, Nicaragua and Sudan in 2017 and 2018. (It later ended TPS for Honduras and Nepal, and a separate case brought last year by citizens of those countries is ongoing).”
Several TPS beneficiaries filed a lawsuit in federal court challenging the Trump’s Administration’s decision. A district court had issued a preliminary injunction, preventing the termination of the TPS program, but this week’s decision lifts the injunction, allowing for immigrants from the affected countries to be subject to removal as early as next year.
According to the New York Times, “The Trump administration has argued that the emergency conditions that existed when people were invited to come to the United States — earthquakes, hurricanes, civil war — had occurred long ago.”
However, most TPS holders have been living in the United States for a decade or longer. The plaintiffs in this case argued that the Trump Administration’s decision to end TPS was fueled by “animus toward ‘non-white, non-European immigrants.’”
The plaintiffs in this case plan to appeal the decision of the 9th Circuit. Immigrant advocates have been critical of this decision, which will potentially expose many individuals with TPS to removal from the United States, where they have established familial, economic, and social ties.
As the Trump Administration continues its effort to end legal immigration to the United States, its decision to end Temporary Protected Status is another measure that will cause severe consequences for over 400,000 immigrants in the United States.
The U.S. Court of Appeals for the Sixth Circuit recently ruled that certain persons who have Temporary Protected Status (TPS), and who are eligible to apply for permanent resident status, may obtain permanent resident status while remaining in the United States, despite the fact that they entered the United States without permission.
In Flores v. USCIS, a Honduran citizen, Mr. Saady Suazo, entered the United States without inspection (EWI), and then applied for, and was granted, TPS, and has maintained TPS status ever since. Mr. Suazo then married a U.S. Citizen. Together they filed applications for Mr. Suazo to adjust status to Permanent Resident, without leaving the United States. U.S. Citizenship and Immigration Services (USCIS) denied the application for permanent resident status because Mr. Suazo had entered the United States without inspection (EWI).
The Sixth Circuit, which addresses cases in Michigan, Ohio, Kentucky, and Tennessee, held that Mr. Suazo is eligible to adjust his status without leaving the United States, even though he had entered EWI.
Notably, the Court concluded by stating: “We are disturbed by the Government’s incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition.”
It is not clear whether the Government will request a rehearing of the case before all of the judges of the Sixth Circuit or request a review by the U.S. Supreme Court.
On March 23, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), announced that DHS will designate Temporary Protected Status (TPS) for Syrians currently present in the United States. Napolitano stated that “conditions in Syria have worsened to the point where Syrian nationals already in the United States would face serious threats to their personal safety if they were to return to their home country.”
Within the next several days, DHS will provide further guidance about TPS eligibility requirements and registration procedures.
The U.S. Department of Homeland Security has extended Temporary Protected Status (TPS) for 18 months for eligible persons from El Salvador who are present in the United States. Persons from El Salvador who are currently in TPS status must re-register with U.S. Citizenship and Immigration Services (USCIS) on or before March 12, 2012.
TPS re-registrants are eligible to apply for a new Employment Authorization Document (EAD), which will be valid until September 9, 2013.
If you have any questions about TPS or the procedures required to re-register, please contact a qualified immigration attorney.