Unfortunate Developments for TPS Holders: Ruling Threatens Status for Several; Green Card Applicatio

Two recent but separate government decisions, one by an appeals court and the other from the Department of Homeland Security, have adversely affected Temporary Protected Status (TPS) holders from some countries.

The U.S. government has the authority to designate a country for TPS if it has suffered armed conflict, natural disaster, or other extraordinary and temporary conditions which make it difficult for citizens temporarily outside the country to return. In designating a country for TPS, the U.S. government will limit beneficiaries of the program to those who have been in the U.S. continuously since the effective date of the TPS designation and who are not inadmissible to the U.S. based on certain crimes or national security. Currently, 10 countries are designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria and Yemen.

TERMINATION OF TPS FOR SUDAN, NICARAGUA, HONDURAS, NEPAL, HAITI AND EL SALVADOR

On September 14, 2020 a panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision lifting a lower court’s injunction that had stopped termination of TPS for Sudan, Nicaragua, Haiti and El Salvador. In other words, the court paved the way for the federal government to end TPS for those countries. According to the Los Angeles Times, “the decision affects 300,000 non-citizens and 200,000 of their children who are U.S. citizens.”

Although this ruling is devastating for those involved, all is not lost. First, immigration advocates will ask the whole court, not just the three-person panel that issued the most recent ruling, to reconsider and issue a decision. Second, USCIS has stated that termination of TPS will not take place for 120 days for Honduras, Nepal, Nicaragua, and Sudan, and for one year for El Salvador. Thus, if USCIS was truthful, a new administration will have the opportunity to reverse the current administration’s efforts to terminate TPS for these countries.

FOR SOME, ADVANCE PAROLE NOT QUALIFICATION FOR GREEN CARD APPLICATION

On August 20, 2020 USCIS adopted an administrative court’s ruling that a TPS holder’s entry to the U.S. on advance parole does not qualify him or her to apply for a green card, even if otherwise eligible.

In the U.S., a green card applicant must prove that he or she was inspected at the border and then either admitted or paroled into the country. Admission occurs when someone presents a valid visa for entry at the border. Parole occurs when someone is allowed to enter the U.S. without a visa for a humanitarian or other designated purpose.

Previously, a TPS holder who initially entered the U.S. without inspection, and subsequently exited the U.S.and returned with advance parole, could apply for a green card if otherwise eligible. <