USCIS issued policy guidance in the USCIS Policy Manual clarifying whether temporary protected status (TPS) beneficiaries are eligible for adjustment of status under section 245(a) of the Immigration and Nationality Act (INA). INA 245(a) requires an alien to have been inspected and admitted or inspected and paroled into the United States, unless exempt from this requirement.
The updated guidance reaffirms USCIS’ long-standing interpretation that an alien who enters the United States without having been inspected and admitted or inspected and paroled, and who is subsequently granted TPS, generally does not meet that requirement.
The updated guidance also incorporates Matter of Z-R-Z-C-, which held that generally TPS beneficiaries who travel outside the United States with prior authorization under INA 244(f)(3) retain the same status when they return to the United States that they had when they departed. If they were not considered inspected and admitted or inspected and paroled before their departure, that will not change when they return.
This updated policy guidance clarifies that decisions in the Sixth and Ninth Circuits holding the TPS is an admission for INA 245(a) purposes are limited to those jurisdictions. Outside of the Sixth and Ninth Circuits, Matter of H-G-G-, 27 I. & N. Dec. 617, 635 (AAO 2019), applies.
Temporary Protected Status is Considered an Admission for INA 245(a) Adjustment Purposes in the Sixth and Ninth Circuits Only
Despite USCIS’ and legacy Immigration and Naturalization Service (INS)’s longstanding interpretation, the federal appellate courts in the Sixth Circuit in Flores v. USCIS and the Ninth Circuit in Ramirez v. Brown have ruled that, for purposes of adjustment of status, an alien who enters the United States without inspection and who is subsequently granted TPS meets the inspected and admitted requirement under INA 245(a).
Therefore, if the applicant resides in the Sixth or Ninth Circuits, the applicant is deemed admitted for purposes of adjustment of status under INA 245(a), but only so long as the applicant remains in TPS on the date that USCIS adjudicates his or her application for adjustment of status.
USCIS does not consider Flores and Ramirez to extend to aliens who may have once had TPS, including those whose TPS was withdrawn by USCIS or the U.S. Department of Justice due to ineligibility, or for whom a country’s TPS designation has been terminated by DHS.
USCIS does not apply Flores outside the Sixth Circuit or Ramirez outside the Ninth Circuit.
A TPS beneficiary in the Sixth and Ninth Circuits must still be otherwise eligible for adjustment of status and warrant a favorable exercise of discretion. The TPS beneficiary must still have a visa number available, must be admissible to the United States, and may not be barred from adjustment.
For example, a TPS beneficiary may be ineligible based on a failure to maintain continuously a lawful status during any period before the grant of TPS, unless eligible for an exemption from this bar to adjustment. Also, an alien who last entered the United States as an alien crewman is barred from adjustment of status under INA 245(a), notwithstanding the subsequent grant of TPS.
Return Following Departure from United States with Prior Consent
TPS beneficiaries may travel abroad temporarily with the prior consent of DHS pursuant to INA 244(f)(3). If a TPS beneficiary travels abroad temporarily, with prior consent from DHS, he or she may return to the United States in accordance with the terms of DHS’s authorization in the same immigration status that he or she had at the time of departure, with certain exceptions.
Upon return, the alien resumes the same immigration status and the same incidents of status that the alien possessed before departure. The departure and return of the alien pursuant to INA 244(f)(3) makes no change at all to any aspect of the alien’s prior immigration status in the United States. Travel authorization for a TPS beneficiary “is a unique form of travel authorization and operates as a legal fiction that restores the alien to the status quo ante as if the alien had never left the United States.”
Since the purpose of Section 304(c) of the Miscellaneous and Technical Immigration and Nationality Amendments Act of 1991 (MTINA) is to return the TPS beneficiary to the “same immigration status the alien had at the time of departure,” this provision of MTINA “cannot be interpreted to put TPS recipients in a better position than they had been upon their physical departure from the United States[.]”
The TPS beneficiary’s travel and return “does not alter their immigration status for purposes of adjustment of status[.]”
When DHS provides prior consent to a TPS beneficiary for his or her travel abroad, it documents that consent by providing an advance parole document (Form I-512) to the alien, as required by regulation. DHS issues an advance parole document for this purpose solely as a matter of administrative convenience. TPS travel authorization is unique and affords the TPS beneficiary only what is provided for under MTINA by restoring the alien to “the same immigration status the alien had at the time of departure.”
The travel authorization for the TPS beneficiary allows the alien “to return to the United States in a procedurally regular fashion after foreign travel[.]” However, “[a] status quo ante return cannot create a condition needed to establish eligibility for a benefit for which the alien” would not have been eligible at the time of departure.
TPS beneficiaries who depart and return to the United States with the prior consent of DHS pursuant to INA 244(f)(3) are neither admitted nor paroled upon return, but simply resume the same immigration status they had before departing. “The same immigration status” encompasses not only that status of an alien who may be present without inspection and admission or inspection and parole, but all other legal incidents of status, such as an alien’s status in deportation, exclusion, or removal proceedings.
This is consistent with the clear intent of Congress in passing INA 244 and implementing TPS. INA 244(h) provides that a supermajority vote is required for Congress to provide TPS recipients with LPR status. Therefore, TPS travel authorization under INA 244(f)(3) and Section 304(c) of MTINA cannot be construed to circumvent Congress’ intent that TPS not provide a direct path to permanent residence. Congress clearly proscribed its own ability to confer permanent residency on TPS recipients, and nothing in MTINA reflects a change of that intent.
The holding of Matter of Z-R-Z-C- recognized the applicant’s reliance interests on past practices and guidance and therefore the holding was not applied to that applicant. Similarly, applicants who have previously received consent to travel and have traveled with DHS consent pursuant to INA 244(f)(3) are likely to have relied upon the past practices and guidance. Accordingly, the statutory construction announced by Matter of Z-R-Z-C- only applies to TPS recipients who departed and returned to the United States under INA 244(f)(3) after the date of the AAO’s Adopted Decision, August 20, 2020.
Matter of Z-R-Z-C- does not impact TPS recipients who adjusted status to lawful permanent residence under the past practice or prior guidance. Such aliens, when applying for naturalization, may not be denied based on INA 318 grounds for being adjusted under past practice or prior guidance.