New Court Decision Spreads Hope, and Confusion, for Those With TPS

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Image courtesy of Britt Selvitelle

A recent decision by the United States Court of Appeals for the Ninth Circuit on Temporary Protected Status (TPS) has led to a lot of questions from Long Islanders. There are 10,000-20,000 Salvadorans, Haitians, and Hondurans with TPS in both Nassau and Suffolk. The newly decided case of Ramirez v. Brown offers some advantages for those with TPS who live on the West Coast, but it is not the path to Legal Permanent Residence (LPR) that some immigrants think it is.

“Can I apply for a Green Card now based on my TPS?” Before I try to answer the question, I want to look at the facts of this case. According to the Ninth Circuit:

Jesus Ramirez, who came to the United States from El Salvador in 1999, was granted TPS in 2001 and has remained in that status to the present day. In 2012, he married Barbara Lopez, a U.S. citizen, and the couple sought lawful permanent resident status for Ramirez.

This case brings up the interplay of TPS and other aspects of immigration law. When a United States citizen applies for a relative to be granted Permanent Residence (a “Green Card”), if that relative satisfies all of the other requirements, the prospective immigrant has to go for an interview with the United States government. Generally, that interview will be in the prospective immigrant’s home country. If the prospective immigrant is living in the United States without having been legally inspected and admitted, the immigrant almost always has to return to his or her homeland for the interview.

There are exceptions to this return to the home country requirement. One of the exceptions is for the Immediate Relatives of United States Citizens if the prospective immigrant was inspected and admitted to the United States. For these individuals, the interview can take place right here in the U.S. through a process called Adjustment of Status. The advantages of Adjustment of Status over going back to the home country for the issuance of the immigrant visa are many and I will not try to go into them here. Suffice it to say that immigration lawyers always prefer their clients adjust status in the U.S. rather than go abroad to a U.S. consulate, but it is about much more than saving on airfare.

The problem for most undocumented immigrants and those with TPS who entered the country without permission is that they don’t meet the requirement that they were inspected by the Border Patrol and legally admitted into the country. Therefore, they have to leave the U.S. for their immigrant visa interview. In this case, Mr. Ramirez argued that even though he had never been inspected and admitted when he came into the country without authorization, he was effectively inspected and admitted when he received TPS.

In denying his application to adjust status, the Department of Homeland Security wrote that Mr. Ramirez was “ineligible as a matter of law to adjust status in the United States because he had not shown that he was inspected and admitted or paroled at the time of his May 1999 entry into the United States…”

The Ninth Circuit examined whether granting TPS was itself a form of inspecting and admitting Ramirez to the United States. According to the court, “Ramirez soundly argues that he has been ‘inspected’ because TPS applicants undergo a rigorous inspection process by an immigration officer…” Having resolved the meaning of that required element in Ramirez’s favor, the court turned to the question of whether he had been “admitted” into the U.S. The court found that the statute creating Temporary Protected Status is “unambiguous” in treating those with TPS as “nonimmigrants,” a legal category made up of other classes of visa holders like those with student and tourist visas who are considered to have been inspected and admitted to the United States. The court quotes the statute which says that the person with TPS “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” Therefore, Ramirez may adjust status to permanent residence as someone who was “inspected and admitted.”

While this is a promising decision, it only covers applications for Adjustment of Status in the Ninth Circuit. The Ninth Circuit covers Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington State. Homeland Security in New York is not obliged to follow it. Also, to be eligible to adjust status, even for those living in the Ninth Circuit, the prospective immigrant must be the beneficiary of a relative petition from an Immediate Relative who is a United States Citizen. So don’t move to California to adjust status if you don’t have a United States Citizen Immediate Relative to apply for you!

To find out the very technical definition of who is an Immediate Relative of a U.S. Citizen, click here.


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