TPS update: court hearing, USCIS policy memo

In two developments related to the Temporary Protected Status (TPS) program, a federal appeals court heard oral arguments on whether the administration should continue to be blocked from terminating TPS for four countries while the lawsuit proceeds, and U.S. Citizenship and Immigration Services has issued a policy memo regarding individuals holding TPS status and their eligibility to adjust status to permanent residence while in the U.S.

Key points:

• A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral arguments last Wednesday in an appeal from the Trump administration. A lower court ruled in October to temporarily block the administration from terminating TPS for El Salvador, Haiti, Nicaragua and Sudan while the lawsuit progresses. TPS remains in effect under the order. The appeals court will decide whether to keep the injunction in place or remove it.
• USCIS has issued a policy memorandum adopting the decision of the Administrative Appeals Office in Matter of H-G-G. That decision said that TPS does not constitute an “admission, inspection or parole” or correct any previous unlawful presence for purposes of adjusting status to permanent residency while in the U.S. In order to adjust status in the U.S., rather than at a U.S. Consulate, an individual must have been “admitted, inspected or paroled” into the U.S. and must have continuously maintained lawful status, among other requirements.

BAL Analysis: The TPS program remains in effect for El Salvador, Haiti, Nicaragua and Sudan at this time, though the Trump administration has argued for the Ninth Circuit to remove the injunction currently keeping the program in place. The court could issue a decision at any time.

The USCIS memo limits individuals holding TPS in seeking to adjust status (such as on the basis of a family-based or employment-based immigrant petition) if they were not admitted, inspected or paroled or if they did not continuously maintain lawful presence. Those individuals would be required to depart the U.S. to apply for a green card at a U.S. Consulate. Departing the U.S. could raise additional inadmissibility issues. The USCIS memo directs officers to follow Matter of H-G-G. It should be noted that the Sixth and Ninth Circuits have ruled that TPS does confer an admission, inspection or parole, so USCIS officers will respect those decisions in those jurisdictions only. However, when assessing whether a TPS holder has maintained lawful presence, USCIS officers will apply Matter of H-G-G in all jurisdictions.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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