Visa Lawyer Blog
Happy Wednesday! Welcome back to Visalawyerblog. In this post, we share some exciting news for beneficiaries of Temporary Protected Status (TPS), who initially entered the country without inspection or admission, but later received TPS, and are now seeking to apply for adjustment of status to lawful permanent residence.
Yesterday, October 27, 2020, a three-judge panel of circuit judges from the U.S. Court of Appeals for the Eighth Circuit, handed down a ruling in the case, Leymis Velasquez, et al v. William P. Barr, et al. This lawsuit was brought by plaintiffs Leymis Carolina Velasquez and Sandra Ortiz – two beneficiaries of Temporary Protected Status who were denied adjustment of status due to their initial unlawful entry into the United States.
The plaintiffs initially filed lawsuits against the United States government in federal district court and lost their cases, because the lower courts held that TPS recipients must be “inspected and admitted” in order to adjust their status to permanent residence. Because these plaintiffs initially entered the country without lawful inspection, they were deemed ineligible for adjustment of status, and their green card applications were subsequently denied by USCIS.
The American Immigration Lawyers Association (AILA) quickly mobilized and filed an appeal before the three-judge panel to settle once and for all the central issue in the case – whether a noncitizen who entered the country without inspection or admission, but later received TPS may adjust his or her status to lawful permanent residence, when the I-485 application requires the noncitizen to have been “inspected and admitted” into the United States.
The three-judge panel ultimately handed a victory to the plaintiffs finding that TPS beneficiaries may adjust their status to lawful permanent residence, despite having initially entered the country without inspection or admission, based on the applicant’s subsequent TPS status.
According to the court, TPS recipients are deemed “inspected and admitted” under the law and so may adjust their status to permanent residence.
How did the court reach its decision?
In this case, the parties argued over the interpretation of 8 U.S.C. § 1254a(b)(1)(A)–(B) in deciding whether TPS beneficiaries are eligible to apply for adjustment of status. The government argued that § 1255 requires an applicant to have been “inspected and admitted” into the United States before being eligible to adjust his or her status. Attorneys for the government asserted that a TPS beneficiary must be separately inspected and admitted to be eligible to adjust his or her status under § 1255. The plaintiffs disagreed arguing that a grant of TPS satisfies § 1255(a)’s threshold “inspected-and-admitted” requirement, making TPS beneficiaries eligible to adjust status to lawful permanent residence under the law.
The three-judge panel agreed with the plaintiffs pointing to two federal district court decisions which decided that, based on the INA’s unambiguous language, a grant of TPS satisfies the “inspected-and-admitted” requirement of § 1255.
In their opinion, the court stated “employing the traditional rules of statutory construction… § 1254a(f)(4) unambiguously requires that TPS recipients be considered “inspected and admitted” for purposes of adjusting their status under § 1255,” and the law further “mandates that TPS beneficiaries shall be considered as being in, and maintaining, lawful status as a nonimmigrant for purposes of § 1255.”
The court reasoned that from these provisions it is clear that a noncitizen who has been granted nonimmigrant status has been “inspected and admitted” within the meaning of the law, and because TPS beneficiaries are “considered” to have nonimmigrant status for purposes of § 1255, they must also be considered “inspected and admitted,” qualifying them for lawful permanent residence.
The court further looked to the language used by Congress in § 1254a(f)(4) and § 1255(c)(2) to support their conclusion that by including the word “nonimmigrant” Congress required that TPS recipients be treated as nonimmigrants when applying for adjustment of status under § 1255. Such treatment would necessarily qualify TPS beneficiaries as being “inspected and admitted.”
Importantly the judges held that “although not all TPS beneficiaries have been admitted at a port of entry, Congress [uses] the term “considered” to create a legal fiction for adjustment purposes,” requiring a TPS beneficiary to be treated as a nonimmigrant under § 1255 even if he or she has not in fact met all requirements for nonimmigrant status.
What does this mean for TPS beneficiaries?
This is an important victory for TPS beneficiaries because it reaffirms the fact that such individuals are considered “inspected and admitted” under the law when applying for adjustment of status. Accordingly, USCIS has no lawful basis to deny applications for adjustment of status filed by TPS beneficiaries on grounds that they entered the United States without inspection. Such an interpretation of the INA would be contrary to the law.
We applaud this decision by the court and look forward to seeing other appellate courts across the nation follow this powerful precedent.
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