By J. Lavetsky, Esq.
Beacon Immigration PLLC
August 25, 2023
For decades, the U.S. government has granted Temporary Protected Status (TPS) to immigrants facing crises in their home countries, such as Ukraine, Haiti, Myanmar (Burma), Afghanistan, and others. TPS allows for the applicant to receive a work permit and social security number, as well as travel abroad and safely return to the U.S. TPS holders must generally renew their TPS every 18 months or so.
Over the years, the number of countries designated for TPS has grown (16 countries currently qualify), as has the number of TPS recipients. Many TPS recipients have had TPS for a decade or more and have put down roots in the U.S. However, challenging immigration laws and policies have prevented many TPS holders from being able to successfully apply for a green card and live permanently in the U.S.
This article discusses an underutilized strategy for how TPS holders can apply for employment-based permanent residence by traveling abroad and returning to the U.S. with permission from USCIS, based on recent policy changes.
Background: How to Adjust Status
First, some background. When an applicant files a green card application for processing within the U.S., this is known as adjustment of status. Adjusting status is generally preferable to applying for a green card at a U.S. embassy in one’s home country. In fact, adjusting status is often the only way for applicants to legalize, since traveling abroad for a green card interview can often have negative consequences, such as being stuck abroad for 10 years due to the unlawful presence bar of section 212(a)(9)(B) of the Immigration and Nationality Act.
The problem for many TPS holders has been that their immigration history prevented them from qualifying for adjustment of status based on employment, and they didn’t have any family members to sponsor them. Immigration laws generally require that an employment-based applicant 1) have been allowed entry into the U.S. by an immigration officer, 2) maintained lawful immigration status since their last entry into the U.S., and 3) not been working unlawfully.
Since many TPS holders either overstayed their visas before qualifying for TPS, or came to the U.S. surreptitiously (without inspection by a U.S. immigration officer), adjustment of status was not an option for many. Their only option was to keep renewing their TPS every 18 months, a stopgap measure without a satisfactory long-term solution.
Recent USCIS Policy Changes
Thankfully, recent USCIS policy changes have paved the way for many TPS holders to overcome these challenges. Last year, USCIS announced that as of July 1, 2022, TPS holders who travel abroad with a special permit using form I-131 will be “admitted” by an immigration officer in TPS status when they return to the U.S.. Previously, USCIS policy was that after traveling abroad, the TPS holder would re-enter the U.S. in their pre-TPS immigration status. For many TPS recipients who had originally entered the U.S. without inspection by a U.S. immigration officer, this was not helpful. Upon re-entering the U.S., USCIS viewed the traveler as having the status of “entry without inspection” (EWI), and they didn’t qualify to adjust status.
Thankfully, the USCIS policy shift in 2022 changed all that. USCIS now views TPS holders with an approved form I-131 (application for a travel document) to have been “admitted” back into the U.S. in TPS status after traveling abroad. In other words, USCIS now considers that immigrants who travel abroad using their TPS travel document have re-entered the U.S. in a lawful immigration status.
But how does this help TPS holders to then apply for an employment-based green card?
Applying for an Employment-Based Green Card
Recall that to qualify for adjustment of status based on employment, U.S. immigration laws (with some limited exceptions) generally require that the applicant must have been 1) admitted into the U.S. by an immigration officer, 2) maintained lawful immigration status, and 3) not been working unlawfully. Under sections 245(a), 245(c), and 245(k) of the Immigration and Nationality Act, TPS holders who return from abroad using their I-512T travel document and maintain their TPS now satisfy these requirements, and can apply for adjustment of status if they are otherwise eligible for an employment-based green card.
What does applying for an employment-based green card look like? Generally, there are two options: sponsorship by a U.S. company, or self-sponsoring one’s own green card. See our recent article about self-sponsorship for more information. Self-sponsorship can be either through the EB-1a for people of extraordinary ability (the Einstein visa), or through the EB-2 National Interest Waiver for applicants whose work will substantially benefit the U.S., such as those in the fields of science, technology, engineering, and mathematics.
If self-sponsorship is not an option, then employer sponsorship maybe be possible by filing a “prevailing wage determination” with the Department of Labor using form ETA-9141, followed by the Labor Certification or PERM using form 9089.
TPS holders who find themselves in this situation should strongly consider the possibility of pursuing an employment-based green card. Whether through the EB-1, EB-2, EB-3, or EB-4 category, TPS holders who have worked for the same company for years are in a good position to ask their employer to sponsor their green card. With the U.S. labor market currently on fire, now is a good time to speak with one’s employer, since employer sponsorship requires the employer to recruit for the position and show USCIS that no suitable candidate was found, which is easier in a tight economy.
Note that under the EB-3 green card category, the green card applicant does not need a university degree (this is the unskilled worker category).
Caveat: Developments in USCIS Policy
Here, we must provide a caveat. While the recent USCIS policy change seems to open up the door for TPS holders to adjust status based on employment, it might require a battle with the local USCIS office. Some USCIS offices take a more open-minded approach to these legal developments and are ready to approve employment-based adjustment of status applications.
Other USCIS offices are more reluctant, and might either put such an application on hold indefinitely, or outright deny it. Applicants who reside within the Fifth Circuit Court of Appeals (Texas, Mississippi, Louisiana) should particularly expect pushback from USCIS, based on recent case law. In such cases, applicants have the right to an appeal, and the appellate office or court may be likelier to see things differently and issue the approval.
This article also assumes that the TPS holder does not have any negative contact with the EOIR immigration court system, including a prior order of removal (deportation). In such cases, the TPS holder’s eligibility to adjust status or even travel is less certain, for reasons that are beyond the scope of this article.
Conclusion
TPS is supposed to be a temporary solution when disaster strikes abroad, but after spending years in the U.S. and putting down roots, immigrants will inevitably want to become permanent residents. Recent USCIS policy changes have fortunately opened the door to doing so, and TPS holders should strongly consider this option in the future.
If you have questions about applying for a green card, please get in touch today: +1 845-288-2435 / beaconimmigrationlawyer@gmail.com.
Beacon Immigration PLLC is a law firm located in the Hudson Valley of New York at 6 Eliza Street, Suite 5, Beacon, NY 12508 (Dutchess County).
