In the recent Ninth Circuit Court of Appeals decision of Ramirez v. Brown, 852 F. 3d 954 (9th Cir. 2017), the court joined the Sixth Circuit and held that a Temporary Protected Status (“TPS”) recipient is considered to be in lawful status and thereby satisfies the “inspection and admission” requirements as a nonimmigrant, for the purpose of adjustment of status. See also Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). Thus as established in Ramirez v. Brown, an individual who entered the United States without inspection and later received TPS status has been “inspected and admitted” and may adjust to lawful permanent resident status should that individual be otherwise eligible.
As such, TPS recipients may be eligible to adjust their status to lawful permanent residents pursuant to Ramirez and Flores.
Who may benefit under Ramirez and Flores?
- Those who entered the United States without inspection prior to receipt of TPS;
- Currently in valid TPS status;
- Have a visa immediately available;
- Not be inadmissible, meaning none of the statutory or regulatory bars to adjustment apply (aside from entering without inspection); and;
What does having a visa immediately available mean?
Family based: as the law stands now, immediate relatives always have visas available as there is no numerical limit to immediate relative visas. Immigration defines immediate relatives as the children and spouses of United States citizens and the parents of United States citizens who are 21 or older. See INA § 201(b)(2)(A)(1) and § 245(a)(3).
Employment based: a limited number of TPS recipients who entered without inspection may be eligible to adjust status pursuant to an employment-based visa category. What matters are the employment preference and the country of chargeability.
Do any of the statutory or regulatory bars to adjustment apply?
The failure to maintain lawful status since entry to the United States and engagement in unauthorized employment may make a TPS recipient inadmissible. However, there are exemptions.
Family based: If applying for adjustment as an immediate relative, the failure to maintain lawful status and the engagement in unauthorized employment are not applicable and the TPS recipient will be admissible.
Employment based: Section 245(k) of the INA can render the normal bars to adjustment of status based on the failure to maintain lawful status since entry to the United States or engagement in unauthorized employment inapplicable to employment preference categories 1 through 4, if since TPS recipient’s last lawful admission to the United States he or she has not, for an aggregate period of more than 180 days:
- failed to maintain, continuously, a lawful status;
- engaged in unauthorized employment; or
- otherwise violated the terms and conditions of his or her admission.
Are there any other options?
Following the reasoning of Ramirez and Flores, it should follow that a TPS recipient who initially entered without inspection and now seeks to change from TPS to a nonimmigrant status for which he or she is otherwise eligible should be viable because one of the requirements for changing to a nonimmigrant status is a lawful admission. Therefore, a TPS recipient living within the jurisdiction of the Sixth or Ninth Circuits should also be able to change his or her status to another nonimmigrant status if otherwise eligible.