Immigration Blog

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Temporary Protected Status holders are eligible for adjustment of status, says the Ninth Circuit Court of Appeals

Apr 26, 2017 | adjustment of status, Advance Parole, federal court, Green card, new law

On March 31, 2017, the Ninth Circuit Court of Appeal issued a very important decision on an immigration case, that has the potential to help thousands of people who living within the jurisdiction of the Ninth Circuit (California, Alaska, Hawaii, Arizona).

In Ramirez v. Brown (No. 14-35633), the Ninth Circuit held that individuals who hold Temporary Protected Status (“TPS”) from designated countries, are considered people who have been “inspected and admitted” within the meaning of immigration law. This is important, because in order to apply for a green card through the adjustment of status process under INA section 245(a), the law requires that the applicant be a person who has been “inspected and admitted” or paroled. Applicants who cannot show they were “inspected and admitted” or paroled, must show that a visa petition or a labor certificate was filed on their behalf on or before April 30, 2001 (and must seek adjustment under INA section 245(i)).

Mr. Rarmirez entered the United States without inspection from El Salvador in 1999. In 2001, he applied for, and was granted, TPS, after having met the criteria to obtain TPS. With TPS, Mr. Ramirez was allowed to live and work in the United States without the fear of being deported. Even though TPS came with certain benefits, it is only a temporary authorization to remain in the United States, since TPS can end at any time the US government decides to end it. Mr. Ramirez, who was married to a United States citizen, Barbara Lopez, wants to live in the United States permanently, so he wanted to apply for a marriage-based green card through the adjustment of status process. U.S. Citizenship and Immigration Services denied Mr. Ramirez’s adjustment application on the bases that he was not eligible for adjustment because he was never “inspected and admitted” into the United States, since he entered without inspection in 1999. USCIS still approved Mrs. Lopez’s visa petition for her husband. Mr. Ramirez challenged the USCIS’ denial in federal court, claiming that when the US government granted him TPS, he was “inspected and admitted.”

The Ninth Circuit agreed with Mr. Ramirez, and concluded that TPS holders are individuals who have been “inspected and admitted” for purpose of adjustment of status under INA section 245(a). This means they can seek adjustment of status without having to leave the United States and without needing to apply for a waiver of unlawful presence (which many people trigger upon leaving the United States after having accrued lengthy unlawful presence).

Currently, the Ninth Circuit’s decision is only controlling within the jurisdiction of the Ninth Cirui (California, Arizona, Alaska, and Hawaii). If you or someone you know lives within the Ninth Circuit’s jurisdiction and holds TPS, contact an immigration attorney to see if this case helps to apply for a green card!

Hopefully, other circuit courts will interpret the law the same way the Ninth Circuit has, but that remains to be seen. Currently, the only other circuit that has a similar law is the Sixth Circuit, which decided Flores et al v USCIS in June 2013, holding that TPS holders are “inspected and admitted” for adjustment of status purposes. Sixth Circuit law is binding in the states of Kentucky, Michigan, Ohio and Tennessee.

And remember, if you are a TPS holder but don’t live in one the states within the Sixth or the Ninth Circuit, you may qualify to obtain “advance parole” to travel abroad, and return on advance parole, at which time you would be “paroled” back into the United States based on TPS. Then, you would be eligible for adjustment of status under INA section 245(a), as an individual who has been “paroled.”

Always consult with a qualified immigration attorney prior to attempting to handle immigration matters on your own! A simple mistake can cost you time, money, and more importantly, your ability to remain in the United States!

Ruchi Thaker