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TPS Holders May Adjust Their Status To LPR Says 6th Circuit

June 5, 2013

Holders of the TPS who entered the US without inspection (EWI) may nevertheless successfully adjust their status to one of a permanent resident…  Flores v. USCIS, (June 4, 2013 6th Cir). The 6th Circuit rejected long standing government position that the holders of the TPS status who came to the US without inspection may not adjust their status to LPR even if subsequently they marry a US citizen.

The Court explained: ‘The plain language of the statute answers the question before the Court. Both parties agree that § 1255, which has to do with adjustment of status from nonimmigrant to LPR status, contains three requirements, two of which Mr. Suazo unquestionably satisfies. First, he has made an application for adjustment of status and second, an immigrant visa is immediately available through his American citizen wife. The parties disagree, however, as to the meaning of § 1255(a) which reads “the status of an alien who was inspected and admitted or paroled” may be adjusted in the Attorney General’s discretion and also § 1255(a)(2), which states that an “alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.”’ …’The Suazos, however, argue that the plain language, when considering the “language itself, the specific context in which the language is used, and the broader context of the statute as a whole,” shows that Congress’s clear intent was that a TPS beneficiary is afforded with a pathway to LPR status. The Suazos agree that one must be “admitted” or “admissible.” However, they argue that TPS beneficiaries are afforded with an exception under the TPS statute which operates as an inadmissibility waiver. See § 1254a(f). We agree.’  Finally,  the court reasoned: ‘The TPS statute details the “[b]enefits and status during [the] period of temporary protected status.” § 1254a(f). Subsection (f) begins by stating, “During a period in which an alien is granted temporary protected status[,] . . . for purposes of adjustment of status under section 1255 of this title and change of status under section 1258 of this title, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” § 1254a(f)(4). We interpret the statute exactly as written—as allowing Suazo to be considered as being in lawful status as a nonimmigrant for purposes of adjustment of status under § 1255.”

This decision, if not overturned, will allow applicants, holders of the TPS status, at least in the 6th circuit to apply for and receive a green card without leaving the US, provided that they meet other statutory requirements.

If you have questions regarding TPS and adjustment of status call New York Immigration Lawyer Alena Shautsova 917-885-2261.

Category: USCIS
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