Who filed the lawsuit?
Melvin Medina, a Honduran citizen, entered the U.S. without inspection on October 9, 1992. On January 5, 1999, the U.S. Attorney General designated Honduras under the Temporary Protected Status program after it suffered a Hurricane. Melvin applied for and was approved for the program and was granted relief from deportation and employment authorization. In 2002, he married Catherine a U.S. citizen. They have three kids together. In December of 2011, Catherine filed form I-130 Petition for an Alien Relative and form I-485 to adjust Melvin’s legal status to a lawful permanent resident. The government denied his petition arguing that Melvin was never “admitted, paroled, or inspected” into the U.S. The government didn’t deny that a bona fide relationship existed; just that Melvin couldn’t adjust his status in the U.S. A federal district court judge disagreed.
The argument is a little complicated, but it relies on the language in the TPS statute stating that, for purposes of adjustment of status, the immigrant shall be considered as being in, and maintaining, lawful status as a non-immigrant. Because one can’t be a lawful non-immigrant if she wasn’t “admitted or inspected,” Congress must have intended to consider the TPS recipient to have been “admitted or inspected.” After reviewing the TPS and adjustment of status statute, the Judge felt that there is no ambiguity in the statutes on this issue and that there is no other reasonable interpretation.
What does this mean for you?
If you have maintained Temporary Protected Status and have an immediate relative to petition for you, you can become a lawful permanent resident without leaving the U.S. This approach avoids consular processing and the problems associated with the 3 and 10 year bar. The Eastern District Court of Pennsylvania joined the Sixth Circuit, and the Seattle District Court in finding that the grant of TPS is an “inspection or admission” for purposes of adjustment of status.
This approach wouldn’t translate into Deferred Action for Childhood Arrivals (DACA) because there is no statutory authority. DACA was done by the President exercising his executive authority. However, a DACA recipient can apply for advance parole to leave the country and return to the U.S. The return would be an “Admission or Inspection,” thus allowing for adjustment of status.
This becomes especially important as the President is considering extending Deferred Action to another category of recipients. Some of which may already have an immediate relative that can petition for them. By applying for the forthcoming program and then advance parole they could set up their case for adjustment of status after their vacation.
What can you do?
If you have TPS and an immediate relative, speak to an immigration attorney today. Within a year, you could be a lawful permanent resident. If you have DACA you should consider applying for advance parole, even if you don’t have an immediate relative today. The “admission or inspection” would put you in a position to adjust in the future if you do have an immediate relative. For example, if you marry a U.S. citizen or your child born in the U.S. turns 21 years of age.
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