Some Temporary Protected Status (TPS) recipients are expected to regain a way to adjust their immigration status to permanent residence in the U.S.
Earlier this month, the U.S. Citizenship and Immigration Services (USCIS) issued a memorandum that restored a process that had been available for years until it was changed under the Trump administration.
That process allows immigrants who entered the United States without legal permission but who now have TPS, to travel outside the U.S. and upon return be officially inspected and admitted at a U.S. port of entry. If they are married to a U.S. citizen or have a child older than 21 who is a U.S. citizen, they could potentially apply for a green card through family sponsorship.
An inspection is a requirement under U.S. immigration law for noncitizens to adjust their status. Those who entered the country illegally but have since been given TPS were not considered inspected and admitted.
Who will be affected?
Aaron Reichlin-Melnick, policy director at the American Immigration Council, said this will affect people who marry U.S. citizens or are the parents of U.S. citizens older than 21.
"That's the most common way in which people, who are undocumented, can adjust status and get a green card," Reichlin-Melnick said.
What is TPS?
Congress established TPS in 1990 when it said migrants whose home countries are considered unsafe could live and work in the U.S. for a period of time if they met the requirements established by the U.S. government.
Currently, 15 countries have TPS designations: Afghanistan, Cameroon, El Salvador, Haiti, Honduras, Myanmar, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela and Yemen. TPS does not lead to U.S. permanent residence.
Is this travel policy new?
No. It had been used for decades until it was shut down by the Board of Immigration Appeals (BIA) in an immigration case decision called the Matter of Z-R-Z-C.
In its memorandum, the USCIS leadership said it no longer views the BIA decision, which created a restrictive interpretation of inspection and admission for TPS beneficiaries, its policy.
"The [BIA] said that, despite the fact that you apply for this advanced travel authorization, despite the fact that it was granted, despite the fact that when you came back to the United States, you walked right up to the immigration officer and presented this document, which says parole on it, you are not technically inspected and admitted or paroled into the United States. The BIA created a legal fiction that you returned to the United States in the status that you had prior to getting TPS," said Michael Turansick, an immigration attorney at the American Immigration Lawyers Association.
Turansick said that USCIS has returned to using the "common sense, plain meaning definition" of inspection and admission under current immigration law when updating the policy.
"When an individual presents themselves at a port of entry to an immigration officer for processing and is allowed to enter the United States, that's inspection and admission for TPS beneficiaries who've been granted this travel authorization," he said.
Is it amnesty for all TPS holders?
No. This policy does not grant automatic permanent residence status to all TPS recipients who live in the U.S. without documents. Turansick explained this is an option for individuals who had previously entered without inspection to regularize their status.
Reichlin-Melnick said this policy is "specifically for [some TPS recipients] living in limbo legally present the United States, but unable to ever get any sort of permanent status."
Who will benefit?
Immigration lawyers said it is difficult to know how many people will be able to adjust their status using this policy, but they estimate thousands of TPS holders could benefit from it.
Under the Trump administration, TPS beneficiaries could apply for a travel authorization, but they would return to the U.S. to the same status they had when they left. In its recent memo, USCIS said the policy change is retroactive, which means TPS holders who traveled during the Trump years and were admitted will be granted inspected status.
Do TPS holders need to apply for travel authorization?
Yes. TPS holders must request travel authorization to leave the U.S. Applicants must show USCIS that they need to travel for urgent humanitarian reasons, such as a sick relative. If permission for the TPS holder to travel is requested by a nonprofit organization, it must prove the travel will further social and cultural interests of the United States. The current filing fee is $575.
If a TPS holder leaves the United States without first obtaining TPS travel authorization, they may lose the TPS status and will not be able to reenter the United States.
