What Is Temporary Protected Status?
Temporary Protected Status (TPS) is an immigration program that provides temporary protection to nationals from countries experiencing dangerous conditions. These conditions may include natural disasters (e.g., the 2010 Haiti earthquake), ongoing armed conflicts (such as the civil war in Yemen), or other extraordinary circumstances (like the current humanitarian crisis in Venezuela).
Eligibility Requirements
To qualify for TPS, individuals must:
1.Be a national of one of the designated TPS countries (currently 16 countries);
2.Have continuously resided in the United States since the date specified for their country; and
3.Not have any disqualifying criminal or security-related issues.
Those who meet these requirements and apply within the designated registration period are eligible for benefits such as work authorization, protection from deportation, and the ability to travel abroad using TPS-specific advance parole.
Lawful and Unlawful Entries
TPS eligibility is not affected by whether an individual entered the U.S. with or without authorization. An authorized entry typically involves arriving at a port of entry with a valid visa and requesting admission. An unauthorized entry typically involves crossing the U.S. land border without proper documentation.
The Temporary Nature of TPS
As implied by its name, TPS is a temporary status. Recipients often face uncertainty about how long they can remain in the United States under TPS. As immigration attorneys, it is important to us that we find pathways to permanent residency to provide long-term security and protection from deportation.
Long-Term Residency and Adjustment of Status
Many TPS recipients have lived in the U.S. for many years. For example, Salvadorans have been eligible for TPS since early 2001, meaning many have been in the U.S. for over 23 years. During this time, they have established families, businesses, and strong community ties. Many have “immediate relatives” (U.S. citizen spouses or U.S. citizen adult children) who can file family-based petitions for permanent residency to allow them to adjust status, or obtain a “green card,” within the United States. However, many TPS beneficiaries lack the necessary lawful entry required for adjusting their status, as they entered the U.S. without authorization through a land border. TPS advance parole can help overcome this barrier by allowing beneficiaries to leave and re-enter the U.S. legally, thereby fulfilling the entry requirement for status adjustment.
Impact of Old Removal Orders
Many TPS recipients who have lived in the U.S. for years have old removal orders, also known as deportation orders. Before December 2019, if a TPS recipient with an old removal order traveled using TPS advance parole, USCIS determined that this travel executed the removal order. This is because under immigration law, leaving the U.S. with an unexecuted removal order is viewed as the execution of a removal or deportation order INA § 101(g). This travel allowed TPS recipients to come back to the U.S. and apply for adjustment of status through an immediate relative with the United States Citizenship and Immigration Services (USCIS). USCIS typically has authority over all adjustment of status applications unless there is a removal order, in which case the immigration court has authority.
In December 2019, a policy alert published by USCIS titled “Effect of Travel Abroad by Temporary Protected Status Beneficiaries with Final Orders of Removal” incorporated into Policy Manual Vol. 7, Pt. A, Ch. 3.D completely undid this long-time benefit of travelling under TPS advance parole. the new policy change stated that if a TPS recipient traveled on advance parole, they would return to the U.S. with the same immigration status and conditions. This means that traveling on advance parole would not “execute” any outstanding removal order. As a result, USCIS would reject any adjustment of status applications from TPS recipients who traveled on advance parole but had an old removal or deportation order, since that order was no longer resolved by departure from the U.S. These applicants now fell under the authority of the immigration court, requiring a motion to reopen a removal order before filing adjustment of status. Reopening the removal order in court has strict rules. For instance, a motion to reopen must be filed within 90 days of the removal order, (with some exceptions) and each applicant can only file one motion. The Trump administration added more restrictions making it even harder to reopen a case, including limits on joint motions with government attorneys and motions initiated by immigration judges (sua sponte motions). Given the strict limitations on such motions, succeeding was extremely difficult, and it left applicants with no viable path to adjust status.
Legal Challenges and Recent Developments
To challenge this policy change, the Central American Resource Center (CARECEN) filed a lawsuit against USCIS in the case CARECEN v. Jaddou, No. 20-02363 (D.D.C.). The lawsuit argued that the new policy’s interpretation of the INA was flawed. It claimed that the policy change lacked a reasonable explanation, was implemented without a notice and comment period, and was racially motivated.
In March 2022, the “CARECEN Settlement” established a new prosecutorial discretion policy for TPS recipients with old removal orders who had traveled on advance parole. Prosecutorial discretion allows the government to decide not to enforce old removal orders and to dismiss the cases, effectively terminating them. With the removal orders dismissed, individuals eligible to adjust status through an immediate relative can now process their applications through USCIS. This provides a more straightforward and simplified path to adjustment, avoiding the complexities of immigration court.
Future Outlook
The CARECEN settlement will remain in effect until at least January 19, 2025. After this date, the future of adjustment of status for TPS recipients with old removal orders is uncertain. Therefore, it is crucial for TPS recipients who have a path to adjust their status through an immediate relative to seek guidance from an immigration attorney. This will help ensure they can secure a pathway to citizenship before any potential policy changes.