There are several thousand individuals, currently, who have been given TPS Status. TPS stands for Temporary Protected Status. What this means is that people from certain countries are given temporary relief from deportation. These individuals can acquire a work authorization and work here without the fear of deportation. However, in a large majority of the country people under TPS are not allowed to change their status to become Legal Permanent Residents (LPR).
However, with the Sixth Circuit decision in Flores v USCIS (No. 12-3549, 2013), and the District Court for the Western District of Washington decision in Ramirez v Dougherty (C13-1236Z, 2014), things may be changing.
In Flores, the plaintiff, Mr. Suazo, was from Honduras. He had been living in the United States since 1998. In 1999, he was granted TPS by the Attorney General. In August of 2010 he married Stacy Leigh Suazo.
In September 2010, Mrs. Suazo filed an Immediate Relative I-130 Petition on behalf of her husband. Mr. Suazo also filed a I-485, Application for Adjustment of Status. Mrs. Suazo’s I-130 was approved but Mr. Suazo’s I-485 was denied. The main basis for denial of the I-485 was that Mr. Suzao had entered the United States without inspection.
After the District Court dismissed their claim, the appeal was heard by the Court of Appeals for the Sixth Circuit.
The Sixth Circuit reversed the District Court’s decision and found that a person under TPS can apply for Permanent Residency through marriage to the US Citizen, notwithstanding the fact that the person had entered the country without inspection.
The Sixth Circuit came to this decision based on the language of the TPS Statute, 1254a(f). The Statute in part reads, “for purposes of adjustment of status under section 1255 of this title and change of status under section 1258 of this title, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”
The court read the language as applying to the Section 1255 as a whole and stated that for the purpose of Adjustment of Status, applicants under TPS are considered admitted. Therefore, individuals under TPS meet the three criteria necessary to adjust their status.
Note that this decision is only binding on the Sixth Circuit (Michigan, Ohio, Tennessee, and Kentucky). The USCIS has not applied the Flores decision throughout the country. Whether the USCIS will adopt the Sixth Circuit’s decision still remains unclear.
Click on this link if you are interested in reading the full decision.
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With the huge influx of children from Central America, the question a lot of people have is “what will happen next?”
Unfortunately, it is very hard to give a simple answer. This link provides a decent overview of what the families might be facing.
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All comments and/or opinions are for general information, and should not be used as legal advice. In addition any comments and/or opinions do not create an attorney-client relationship. In order to obtain a comprehensive and accurate legal opinion you should consult an attorney with the specific and detailed facts or your case/question.