Big Case for TPS holders decided in 6th Circuit

Just the other day the 6th Circuit Court of appeals overturned the denial of an Adjustment of Status application filed on behalf of a TPS holder. The TPS recipient had entered the US illegally, but had a US Citizen wife. The couple filed an I-130 (family based petition) and I-485 (application to adjust status). While USCIS approved the I-130 they denied the I-485. Generally, those who enter the US illegally are prohibited from adjusting their status to a permanent resident because of Section 245 of the Immigration and Nationality Act (INA). However, those in TPS status are considered to be in status and are able to work and stay in the US. Unfortunately, the part of the statute that states that they are to be considered as admitted and legal has always been read by USCIS to only apply to the ability of TPS recipients to work, and not extended to their ability to adjust status (if they entered the US illegally). Therefore USCIS has consistently denied such I-485 applications.

The 6th Circuit, however, stated that the only support for this position is the history of USCIS adjudications and that it has no support in the statute or legislative history. Because such a reading was against the plain language of the statute, the 6th Circuit went on to overturn the decision. This means that those person in TPS status who entered the US illegally are now able to adjust their status to that of a permanent resident if they are otherwise eligible (at least if they live within the jurisdiction of the 6th Circuit). It still remains to be seen if USCIS will appeal the decision and whether they will adopt the decision for the entire USA, or limit its applicability to the 6th Circuit.

Author: Adam Frank, Esquire

I am an immigration attorney with over 20 years of experience. I was graduated from Brandeis University undergrad in 1990 and then spent a year traveling around Central America. In 1991 I began attending the University of Baltimore School of Law and was graduated in 1994. I began working in Immigration Law in 1998 when I joined a small law firm and, in 2000 opened my own firm with my law partner Ed Leavy. Sadly, Ed passed away in 2011. I am still a partner in my own firm with my current partner Brendan Delaney. Our firm is Frank & Delaney Immigration Law, LLC.

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