In Sanchez v. Mayorkas, 593 U.S. ____(June 7, 2021), the U.S. Supreme Court resolved the circuit split on whether a grant for temporary protected status (TPS) authorizes eligible noncitizens to adjust status to lawful permanent resident even if they entered the United States unlawfully – the Court held that it does not.
Previously, courts in the Sixth, Eighth, and Ninth Circuits have held that the grant of TPS cured the unlawful admission, allowing individuals in those Circuits to adjust status.
TPS grants temporary humanitarian relief from deportation to individuals from certain countries where, due to natural disaster or armed conflicts, conditions are too dangerous for the individual to return. The TPS section of the Immigration and Nationality Act (INA), in Section 1254a(f)(4), establishes that individuals granted TPS are maintaining lawful nonimmigrant status. The INA also provides that a nonimmigrant may adjust status to permanent resident based upon “a lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Sanchez rests on whether there is an “indissoluble” link between “the conferral of nonimmigrant status” and the “conferral of admission.” The Supreme Court in this unanimous decision held that there was no such link. The Court held that the legal-entry requirement is distinct and independent.
With no link between the grant of TPS and the concept of “admission” to the United States, the decision creates two outcomes for TPS recipients: (1) those who entered legally are potentially eligible to adjust status to lawful permanent resident; and (2) those who entered the United States unlawfully are not eligible to adjust status to lawful permanent resident. While Jose Santos Sanchez loses out, others still receive the desired benefit.
Justice Elena Kagan, writing for the Court, notes that there is pending in Congress the American Dream and Promise Act that specifically states that “a TPS recipient shall be considered ‘as having been inspected and admitted into the United States, ’ as being in, and maintaining, lawful status as a nonimmigrant . . . .” She also states that the Court simply cannot read that into the current statute.
In the past, some TPS beneficiaries were able to overcome their initial unlawful admission and adjust status by travelling outside of the United States and re-entering using Advance Parole. But that loophole was closed by a policy change in August 2020.
For advice on strategies for TPS beneficiaries who entered the United States unlawfully, please reach out to your Jackson Lewis attorneys.