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NEWS ALERT (Immigration): Temporary Protective Status (TPS) Now Considered an “Admission” for Adjusting Residency Status in the 9th Circuit.

April 4, 2017

On March 31, 2017, the 9th Circuit Court held that a person who has received Temporary Protective Status (TPS) is deemed to have been "inspected and admitted" for purposes of adjusting status to become a resident.  TPS is a type of relief given to immigrants whose country has been designated as a danger to return to, due to natural disasters, disease outbreak, or armed conflict.  If an immigrant’s home country has been designated as “dangerous”, to be granted TPS, he/she has to establish that (1) he/she has lived in the United States physically and continuously, since the time

their home country has been designated “dangerous,” and (2) he/she has no more than one misdemeanor and no felonies.  If granted TPS, the beneficiary can live and work in the United States without fear of being placed into removal proceedings. 

 

TPS, itself, is not a pathway to citizenship, but rather a form of relief from deportation for undocumented immigrants.  The only way to adjust one’s legal immigration status within the United States, was by either (1) having a legal entry in the U.S., (2) claim protection under section 245(i), or (3) have U.S. military family members.  Circuit Courts have debated whether TPS beneficiaries, who originally entered the country illegally, could claim “legal entry” for adjustment of immigration status purposes.  The 9th Circuit’s decision confirmed that the designation of TPS is a form of legal entry into the United States, and that TPS beneficiaries have been “inspected and admitted” under its laws. 

 

Formerly, to become a resident, a TPS beneficiary had to have a family member petition for them and then go through consular processing or gain Advance Parole.  If the individual had no legal entry, and the visa from a family member petition became available, the TPS beneficiary would have to leave the U.S. and continue through the consulate in their home country.  If the TPS beneficiary received Advance Parole, the individual would have to leave the United States and come back with the Advance Parole confirmation, before beginning the adjustment of status process.

 

The 9th Circuit’s decision in Ramirez v. Brown, No. 14-35633, D.C. No. 2:13-cv-01236-TSZ (W.D.Wash. Mar. 31, 2017), makes becoming a resident a little easier if you are an undocumented individual that immigrated to the U.S. froma “dangerous” country.  Now, a TPS beneficiary with a spouse, parent or child over 21 years old, can have the family member petition them to be eligible for an adjustment of status, without ever having to leave the United States.  The 6th Circuit Court of Appeals ruled in a similar manner as the 9th Circuit in its Flores v USCIS, 718 F.3d 548 (6th Cir. 2013) decision.  The 11th Circuit, however, came to an opposite conclusion in Serrano v. USCIS, 655 F.3d 1260 (11th Cir. 2011).  Until these decisions are reviewed and finally decided by the Supreme Court, the Ramirez ruling is the current law of the land for all States in the 9th Circuit, including California.

 

If you or a loved one have immigrated to the United States from a country deemed “dangerous”, call our office today to find out if you have a form of relief, and if this new law applies to you.

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