Temporary protected status (“TPS”) provides temporary status to foreign nationals in the United States from countries experiencing armed conflict, natural disaster, or other extraordinary circumstances that prevent their safe return.[1] It is a form of humanitarian relief that allows immigrants in TPS to live and work legally in the United States. TPS is granted by the Secretary of the U.S. Department of Homeland Security and can be granted for periods of 6 to 18 months with the ability to extend the period if the country continues to meet the conditions for designation.[2] Once an immigrant is granted TPS, they are eligible for employment authorization, they cannot be detained on the basis of their immigration status, they may be granted travel authorization, and they are not subject to removal while they retain TPS relief.[3] However, despite these benefits, many TPS holders express concern for their futures as they are unsure what to do once their TPS designation is terminated.

When a country’s TPS designation is terminated, TPS holders revert to the immigration status they possessed before TPS, unless that status has since expired or been terminated, or the TPS holder obtained another lawful status while registered for TPS. Beneficiaries who had no lawful status before obtaining TPS and who have not since obtained any other lawful status return to unlawful status when their TPS benefits end.

While TPS does not provide a path to lawful permanent residence, § 244(f)(4) of the INA does contemplate that certain individuals who have both TPS and a lawful admission or parole will be eligible to seek adjustment of status pursuant to INA § 245 or change of status pursuant to INA § 248. Generally, in order to be eligible to apply for permanent residency through the adjustment of status process in INA § 245, an applicant must have been inspected and admitted or paroled into the United States. The applicant must also be admissible and an immigrant visa must be immediately available. The government’s current position is that a grant of TPS is not an admission. Although court cases in the Sixth, Eighth and Ninth Circuits have ruled that foreign nationals who enter the United States, even without inspection or parole, and are subsequently granted TPS do meet the inspected and admitted/paroled requirement, a recent Supreme Court case has decided otherwise. [4]

In June 2021, the Supreme Court issued a decision in Sanchez v. Mayorkas finding that a grant of TPS is not considered an admission for purposes of INA § 245(a) adjustment in cases where the TPS recipient initially entered the United States without inspection. The court held that individuals who unlawfully enter the US prior to obtaining TPS are not considered admitted after subsequently being granted TPS. While the Court did not express a view on whether returning to the US with advance parole enables a TPS recipient to become eligible for adjustment of status, the current USCIS policy is that advance parole travel after August 20, 2020 is not considered admission or parole that would satisfy the INA § 245(a) requirement. While disappointing, this decision does not impact TPS recipients who entered the US with inspection. It should be noted that at this time there is proposed legislation before Congress that would provide a path to lawful permanent residence and citizenship to TPS recipients by amending the INA to clarify that a grant of TPS is considered an admission for adjustment of status.

Many TPS holders may be eligible to remain in the United States because of family ties, the length of time they have been in the United States, or because of the conditions in their home country. In order to determine what forms of immigration relief TPS holders are eligible for it is important to seek out the advice of a qualified immigration attorney who can thoroughly assess each individual case and build a strategy specific to the TPS holder’s needs.

[1] INA § 244 and 8 U.S.C. § 1254a

[2] INA § 244(b)(2)(B) and 8 U.S.C. § 1254a(b)(2)(B)

[3] INA §§  244(a)(1), (d)(4), (f)(3), and 8 U.S.C. §§  1254a(a)(1), (d)(4), (f)(3).

[4] Flores v. USCIS, 718 F.3d 548 (Sixth Cir. 2013); Ramirez v. Brown, 852 F.3d 954 (Ninth Cir. 2017).