On Monday, June 7, 2021, the Supreme Court of the United Stated (SCOTUS) unanimously ruled that some Temporary Protected Status (TPS) recipients are not eligible for lawful permanent resident status, commonly known as green cards.
It is important to note that this ruling does not apply to all TPS recipients. Specifically, the court made it clear that this applies only to those TPS recipients who entered the country unlawfully in the first place.
The Purpose of TPS
The Secretary of Homeland Security has the authority to designate countries for TPS due to certain temporary conditions (such as war or natural disaster) that prevent its nationals for safely returning to that country. Currently, there are 12 such countries recognized by USCIS. The plaintiffs in the case before the Supreme Court were both from El Salvador, escaping the country’s unsafe living conditions. According to the Associated Press, there are around 400,000 individuals who are TPS recipients currently present in the U.S. from these 12 countries.
TPS allows recipients to avoid deportation from the U.S. and even legally work in the U.S. to support themselves.
Why Some TPS Recipients Cannot Get Green Cards
The ruling of this case hinged on how the plaintiffs entered the U.S. Since the plaintiffs entered the U.S. unlawfully, they are not considered to have been “admitted” as per U.S. immigration law. According to the ruling, if a TPS recipient enters the U.S. unlawfully they are not eligible for LPR (lawful permanent resident) status under 8 U.S.C. §1255 merely because of the conferred TPS benefit.
Furthermore, the opinion states that in order to be eligible for LPR status one must be “admitted” to the country, which is defined in 8 U.S.C. §1101(a)(13)A) as the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”
The Court also highlights the fact that “lawful status” is separate from “admission.” This means that an individual can be granted lawful nonimmigrant status, such as TPS, after arriving in the U.S. but that nonimmigrant status does not confer upon the recipient a lawful admission to the country if they entered unlawfully.
Impact of the SCOTUS Decision
Despite the factual explanation above of why this specific ruling was reached, there is a human side to the story. The plaintiffs have been in the U.S. since 1997. They received TPS status in 2001 when El Salvador was added to the list of countries eligible for TPS after a series of earthquakes in the country. In 2014 they applied for adjustment of status to LPR.
Plaintiffs have lived in the U.S. for over two decades, enough time to make the U.S. their home with family, friends, jobs, responsibilities, and a community they rely upon.
According to Roll Call, this decision also resolves an inconsistency among courts as to the treatment of TPS recipients. Specifically:
“The case puts an end to a split among circuit courts that allowed immigrants living in some states to get green cards in the last few years, while those with identical circumstances in other states could not.
The U.S. Court of Appeals in the 6th, 8th and 9th circuits had held that a grant of TPS counts as a legal admission to the country, allowing immigrants with temporary status to become permanent residents when sponsored by family members or employers without having to leave the country.”
The emotional toll on TPS recipients can be understood, especially since the Trump administration had voiced a desire to end the TPS program altogether. This would have sent TPS recipients back to uncertain futures in countries ravaged by disasters and unsafe living conditions. This ruling puts many TPS recipients in a tough situation once again.
One example is of César Magaña Linares, a committed immigration activist who was brought to the U.S. as a child when he was 2 years old and has been in the U.S. as a TPS recipient for over 20 years. He lives with a deportation order hanging over his life, with TPS being the only thing shielding him from being sent back to El Salvador, a country he knows very little about.
President Biden and TPS
The current administration supports the TPS program, having most recently renewed the TPS designation for Haitian nationals for another 18 months. Despite this, Biden has agreed with the current law that prevents individuals who have unlawfully entered the U.S. from receiving LPR status.
The American Dream and Promise Act of 2021 which was passed in the U.S. House of Representatives in March 2021, seeks to provide a path to LPR status for certain inadmissible TPS holders who meet certain criteria. The future of this proposed legislation in the Senate is uncertain.
Sam Shihab & Associates Can Help
If you are an immigrant with any questions or concerns regarding your immigration case, visas, green card applications, or any other legal matter, speak at once to an experienced Columbus immigration attorney. A good immigration lawyer can help you and your family with any immigration issue you face and defend you if you’re accused of violating immigration law.
Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.
Contact us today!