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 According to ruling Illegal Immigrants with TPS Can Get Green Cards
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Posted on 09-02-15 2:20 PM     Reply [Subscribe]
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Illegal Immigrants with TPS Can Get Green Cards: 6th Circuit

In a decision Tuesday issued by the 6th Circuit, the Court determined that illegal immigrants with Temporary Permanent Status (TPS) can apply for permanent resident status under federal law.

The Flores, et al. v. USCIS, et al. decision takes a defiant stab at the “archaic and convoluted state of our current immigration system” by offering a plain reading of federal immigration statutes that seems perfectly reasonable despite USCIS policy.

What is Temporary Protected Status (TPS)?

"Office Space" devotees may associate this with the dreaded TPS reports, but the term refers to a special status allowing non-resident aliens to reside temporarily in the U.S. that can be granted at the discretion of the Attorney General under 8 USC 1254a(b)(1).

In general the Attorney General of the United States has authority to grant protected status to nationals from countries where there are:

  • Natural disasters. Earthquakes, floods, epidemics, etc.
  • Ongoing armed conflicts. Any situation that would put returning nationals at risk of harm.
  • Extraordinary conditions. The Attorney General has discretion to decide that conditions in a nation are not hospitable to allow nationals to return.

This authority has its limits (no granting status to felons or former Nazis), but it was successfully granted to Saady Suazo, a Honduran immigrant who was granted TPS in 1999 after immigrating illegally in 1998.

Suazo Denied Permanent Residence

Suazo continued enjoying TPS designation (countries like Honduras and Nicaragua have been granted TPS designations since 1999), and after marrying his American citizen wife in 2010, he applied for a change in his immigration status under 8 USC 1255.

The United States Citizenship and Immigration Services (USCIS) denied his application stating that Section 1255 cannot allow an illegal alien who was not "inspected and admitted" into the country to change to permanent resident status.

Suazo sued in federal district court over the interpretation of Sections 1254 and 1255 under the Administrative Procedures Act, and the court granted a 12b6 dismissal to the USCIS, which was then appealed to the 6th Circuit.

Statutory Interpretation

The Flores court stated the 6th Circuit is entitled to interpret the immigration statute from its plain meaning when the intent of Congress is clear, despite what the USCIS might think.

Section 1254a(f)(4) states with respect to TPS holders that "for purposes of adjustment of status under section 1255 ... the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant."

The Court stated that this provision can be understood by its plain language as an exception to the bar to illegal immigrants obtaining permanent resident status under Section 1255.

Thus, it appears under the Flores ruling that current legal TPS holders may apply for legal residence even if they entered illegally.

Related Resources:


http://blogs.findlaw.com/sixth_circuit/2013/06/illegal-immigrants-with-tps-can-get-green-cards-6th-circuit.html

 
Posted on 09-02-15 2:53 PM     [Snapshot: 76]     Reply [Subscribe]
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I Have Temporary Protected Status (TPS): Can I Get a Green Card?

January 12, 2014 Lindsay Gray Immigrationadjustment of status, advanced parole, consular processing, entered without inspection, entry, Flores v. USCIS, I-94, misrepresentation, temporary protected status, TPS, waiver
Due to certain conditions in a foreign country, the Secretary of the Department of Homeland Security can designate such country for Temporary Protected Status (TPS). As of now, those countries are:

* El Salvador

* Haiti

* Honduras

* Nicaragua

* Somalia

* Sudan

* South Sudan

* Syria

Many people in the U.S. who have TPS find themselves wanting to stay even after their TPS expires. So the big question is: who is eligible for adjustment of status?

CURRENT LAW: YOU MUST HAVE A BASIS TO ADJUST

As it stands now, a TPS holder who would like to apply for a green card (also known as legal permanent resident status) must have a basis to adjust. This means that someone cannot apply for a green card simply because they have been granted TPS. But for those who have married U.S. Citizens, or have a citizen child over the age of 21, or those who have a job willing to sponsor them, you are eligible to apply for adjustment, at least without any problems such as false claims of citizenship, certain criminal convictions, or other grounds for inadmissibility or removal.

The bill passed by the Senate creates a pathway to citizenship for TPS holders. But its not the law…at least not yet. But hopefully it will be as soon as Congress starts actually doing something again.

WHAT IF YOU ENTERED WITHOUT INSPECTION?

If you entered the United States without inspection, you may still be eligible for a green card without leaving the U.S. A recent decision out of the Sixth Circuit Court of Appeals held that someone who originally entered without inspection in eligible to adjust. However, this is limited to the Sixth Circuit right now (Kentucky, Michigan, Ohio, and Tennessee).

The 11th Circuit came to the opposite conclusion (Alabama, Florida, and Georgia). However, the good news is that a case called Matter of Arrabelly and Yerrabelly allows for TPS holders who entered without inspection to apply for advanced parole, which means that one may leave the U.S. briefly and re-enter without triggering an unlawful presence bar, and thus may apply for adjustment upon re-entry. This also creates an avenue for a TPS holder to apply for a green card without having to consular process, which means returning to one’s home country for a lengthy period of time to process your application there.

WHAT IF YOU ENTERED THE U.S. WITH SOMEONE ELSE’S PASSPORT?

If you entered the United States with inspection, but with someone else’s passport or visa, you may still be eligible to apply for adjustment so long as you can prove the entry. You would likely need the altered passport or visa with a photo of yourself, or some other way to prove that the entry granted to the other person was actually you. You will also need a waiver for misrepresentation. If you cannot otherwise prove the entry, you may still apply for advanced parole (see above) to briefly leave the U.S. and re-enter without having to consular process. But you will still need a waiver. However, if you entered with a U.S. Passport or otherwise made a false claim of U.S. Citizenship, you may face a permanent bar to admission.

As you can see, navigating adjustment of status when you are a TPS holder is a complicated process. This short articles does not even begin to cover all of the issues you may face. Please consult a qualified immigration attorney before attempting to apply for adjustment of status in order to avoid costly and potentially life-altering mistakes.





 
Nepalimannaparaunemanche
Posted on 09-02-15 5:28 PM     [Snapshot: 256]     Reply [Subscribe]
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hell no illegal immigrants should never ever even get TPS, they already broke the law
 


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