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TPS: Children Have to Qualify Independently From Parents

June 23, 2014

TPS: Children Have to Qualify Independently From Parents

Author: New York Immigration Lawyer Alena Shautsova

TPS or Temporary Protected Status allows its beneficiary to stay and work in the US for the period of time designated by the US government.  Currently, TPS was announced for the following countries: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria.

Those who would like to receive TPS have to satisfy certain requirements, including being physically present in the US on a special date, designated by the government.  For each of the countries, the date is designated separately. It does not matter if the potential beneficiary entered the US illegally, all what matters: the person must physically be in the US and must remain in the US for a certain period of time.

The question arose in the Matter of DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014) if parent’s physical presence can be imputed to the unemancipated (dependent on parents) children. The argument was not baseless, because for some time the courts held that in fact, parents’ physical presence in the US may be imputed (or counted in)towards physical presence of children, even if in fact, children were not  in the US. However, this argument was in essence “closed” by the U.S. Supreme Court in Holder v. Martinez Gutierrez , 132 S. Ct. 2011 (2012).

As such, the BIA answered the question in negative, and two daughter of the TPS holder were denied TPS and put in the removal proceedings.

The consequences of this decision cannot be underestimated. Under the TPS regulations, there is no dependent status, meaning that if parents receive TPS, their children cannot do so with them. Now, it also became clear, that children must independently qualify for the TPS, and this, of course, will negatively reflect on family unity.  Please note, that at the same time, children may qualify for SIJS if a Family court issues an order appointing a guardian or custodian who can be even undocumented parent!