American Immigration Council/American Immigration Lawyers Association Practice Advisory on Temporary Protected Status (TPS) Adjustment of Status Applications Co-Written by LHSC’s Nicole Simon

December 20, 2019

A recent Practice Advisory issued jointly by the American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA), including LHSC’s own Nicole Simon as a co-author, reports a recent trend of some U.S. Citizenship and Immigration Services  (USCIS) officers denying adjustment of status applications (i.e. permanent resident status) for certain applicants who obtained Temporary Protected Status (TPS) after first entering the United States without inspection, even when those applicants subsequently re-entered the country using an Advance Parole travel document.

By way of background, TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA) or to those without nationality who last resided in a designated country.

As noted in the Practice Advisory, the USCIS had found until recently that TPS holders who travel with an Advance Parole travel document satisfy the “inspected and … paroled” requirement of INA § 245(a) and are able to adjust their status to that of lawful permanent resident if they satisfy all other statutory requirements and are found to warrant a favorable exercise of USCIS discretion. This eligibility extended to those TPS holders whose initial entry into the United States was without inspection, as USCIS considers the individual’s more recent parole entry rather than the original entry when determining if the applicant meets the requirement of section 245(a).

Now, some (but not all) USCIS offices are seeking to deny and/or denying adjustment applications of this group of TPS holders, citing a statutory provision from 1991 that amended the Immigration Act of 1990 and which provided that TPS holders who leave and return to the U.S. with an Advance Parole travel document will  be “inspected and admitted in the same immigration status [they] had at the time of departure” (emphasis added).   USCIS argues that the TPS holder returns to the “same immigration status” they had prior to departure and that is a TPS holder who initially entered the U.S. without inspection.

In this Practice Advisory, AIC and AILA are pushing back against the “USCIS’ faulty reasoning” in these cases and provide key arguments to assist practitioners representing clients in adjustment of status proceedings before the USCIS, an Immigration Judge, the Board of Immigration Appeals (BIA), or in a federal court challenge.

The American Immigration Council is an important organization for immigration advocates. In addition to providing research that can be used by practitioners to support their clients, they provide direct pro-bono legal services to those in need, including to detained immigrant mothers and children near the border. They also provide valuable work on immigration litigation, legislation, and pro-immigration communications. As a registered 501(c)3, they rely on donations to fund this work.   For more information about this organization and how to donate, please click here.

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