Sodette KM Plunkett
TEMPORARY PROTECTED STATUS AND THE SANCHEZ v. MAYORKAS DECISION
Updated: Jul 2, 2021
1. WHAT DOES THE NEW SUPREME COURT DECISION MEAN FOR MY CURRENT TPS STATUS? DO I HAVE TO LEAVE THE COUNTRY?
No. It means nothing for TPS holders’ status as it stands right now. You do not have to leave, and you still have TPS so long as it will be renewed for your country and the conditions of TPS, i.e. Work Authorization Documents, Ability to travel on Advance Parole do not change.
2. DOES THIS DECISION MEAN I WILL NEVER BE ABLE TO GET A GREEN CARD?
It depends. To get a green card, you need to be independently eligible. TPS itself does not, and never has, afforded you a green card. To get a green card, you must have been petitioned for by a relative or employer, be in status and have not accrued unlawful presence aside from immediate relatives (spouse, parent of USC), or in the alternative have 245i, and you must have been admitted, inspected or paroled into the United States.
What does it mean to be admitted, inspected or paroled?
This is where the Sanchez v. Mayorkas decision comes in. The Supreme Court has ruled that if you entered the United States without inspection, and are later granted TPS, you have NOT been admitted, inspected or paroled into the United States by virtue of this grant. You have been given a lawful status, but it is not a valid entry into the United States. You must have been physically admitted, inspected or paroled at a valid port of entry in order to be able to adjust status and receive your green card in the United States.
3. HOW DO I KNOW IF I HAVE A VALID ENTRY INTO THE UNITED STATES?
As a benefit of TPS, many TPS holders have applied for advance parole. Advance parole allows a TPS holder to travel outside of the United States with advance permission to re-enter at a port of entry. CURRENTLY, it is the opinion that a re-entry on advance parole also does not count as a lawful admission and inspection for the purpose of Adjustment of Status; however, prior to August 20, 2020, TPS holders generally were able to use this entry for the purpose of Adjustment of Status, and if you have reentered the United States on a grant of Advance Parole before August 20, 2020, you may still use that entry for the purpose of adjusting status. This is not true of all jurisdictions, but it will be valid in New Jersey and Pennsylvania.
The recent Supreme Court decision does not affect or change your status a TPS holder. It only means that a grant of TPS is not a lawful admission to the United States for the purpose of adjustment of status. It only means that a grant of TPS is not considered the same thing as receiving an entry stamp at the airport or a land port of entry which is necessary for Adjustment of Status. You can still remain in the United States to live and work. If you traveled on advance parole which you were granted due to your status as a TPS holder, you still may be able to use that entry to Adjust Status (if you are eligible) depending on where you live. If you have not traveled on advance parole and are a TPS holder, always consult with a licensed attorney as you may have other options.