AUTHOR: Kevin Lashus.
Employers in industries traditionally vulnerable to unintentional hiring of unauthorized foreign nationals (such as in the construction, manufacturing, and hospitality industries) because of the prevalence of sophisticated fraudulent documents may get some relief from violation of law, at least as to workers who are Temporary Protected Status-eligible beneficiaries.
A federal court in Washington has ruled that a noncitizen’s Temporary Protected Status (TPS) qualifies as “inspection and admission” into the United States and, therefore, he is eligible for a status adjustment to “legitimate” himself. Ramirez v. Dougherty, No. 13-CV-01236 (W.D. Wash. May 30, 2014). Under the Immigration and Nationality Act, inspection and admission are eligibility requirements for lawful permanent residence (LPR) status. Jesus Ramirez, the plaintiff, was granted TPS in 2001 following a devastating earthquake in El Salvador, his home country.
The Secretary of Homeland Security would designate a foreign country for TPS because of conditions in the country that temporarily prevent the country’s nationals from returning safely. The Secretary also may make such a designation where the country is unable to handle the return of its nationals adequately. In nearly all cases, the TPS-eligible foreign national entered the United States without inspection or overstayed his or her visa; as a result, the employee is unauthorized to work in the United States prior to applying for and receiving the TPS benefit.
Ramirez sought to become an LPR on the basis of his marriage to a United States citizen.
Before the federal court ruling, the Government had taken the position that once granted TPS, an individual could not pursue residency because the foreign nation was never “admitted.” The District Court disagreed.
In addition to finding support for its decision in the language of the TPS statute, the court noted there are important policy reasons—stressing that Mr. Ramirez had been in the United States for approximately 15 years, had established roots here, and “has waited his turn for an independent, legal, and legitimate pathway to citizenship, through the immediate relative visa application.”
Relying on a Court of Appeals for the Sixth Circuit decision, the court found the government’s solution (which would require Mr. Ramirez to leave the country, be readmitted, and then go through the immigration process all over again) was a “waste of energy, time, government resources, and will have negative effects on his family.”
Following this decision, a large portion of the estimated 11.2 million unauthorized foreign nationals residing and working in the United States likely TPS beneficiaries are eligible to adjust status. In other words, workers working under false pretenses who are TPS-eligible beneficiaries are now eligible to adjust status to become “legitimate.” Thereby, erasing the employer’s exposure associated with the employee’s prior status.
Making an announcement without legal advice is not recommended; contact your immigration attorney to find out how educating the workforce in this regard may assist in decreasing administrative exposure.