Temporary Protected Status (TPS) is a type of immigration status for citizens of certain countries which have suffered from war, natural disaster, or other significant problems. Although it’s temporary, some countries have been designated for decades. Many people look for ways to become permanent residents if possible.
Sometimes, people with TPS become eligible to apply for permanent residency. Typically this is the result of getting married to a US Citizen or having a US Citizen child turn 21, but there are sometimes other options. These cases can quickly become complicated by the passage of time, the fact that the TPS statute is unique, and because USCIS has been making significant changes especially during the Trump Administration.
Everyone applying for adjustment of status is recommended to talk with an immigration lawyer before filing, but this is especially important for people who have had TPS at some point.
Can TPS holders adjust status in the US?
Many people with TPS have successfully adjusted status to become permanent residents, but not everyone with TPS will qualify to do so. TPS was never intended to allow people to live in the US permanently and the law does not create a pathway for people to become permanent residents after a period of time. Instead, TPS holders must continuously renew their status and face the constant threat that any president could simply terminate TPS for their country, as the Trump administration has repeatedly tried to do.
While not everyone with TPS qualifies, there are some common situations in which people with TPS can adjust status:
- Marriage – sometimes people with TPS marry a US Citizen or resident of the US and are able to either apply for adjustment of status or consular process in their home country
- Children – once a US Citizen child turns 21, the child can petition for their parent and sometimes they can adjust status in the US
- Old Petitions – Another law, INA Sec. 245(i), allows some people with very old petitions filed for them to adjust status
- Other – There are many exceptions and less common options that allow people to become permanent residents, and TPS can help prevent unlawful presence and sometimes help people adjust status
Changes to TPS adjustment of status after Matter of Z-R-Z-C
In a significant departure from prior law, USCIS has decided that it will no longer consider people who travel with parole and TPS to have been paroled for purposes of adjusting status. USCIS announced this new rule when it issued and adopted Matter of Z-R-Z-C on August 20, 2020. This decision said that, despite many years of considering people who travel with parole and TPS to have been paroled, USCIS will no longer consider that parole to count for purposes of adjustment of status.
This change is extremely important. Previously, people with TPS could travel on parole and use that new entry to allow them to get residency through a family member, such as a US citizen spouse or child. Traveling with parole not only allowed those with TPS to make temporary trips abroad, but also it provided an entry for them to use to adjust status. Many people have become residents on the basis of a parole in this way.
USCIS is now saying that travel with parole after August 20, 2020, will not give people that same benefit. However, there are two important exceptions. USCIS has allowed people who already adjusted status to keep their residency and will even consider travel with parole prior to August 20, 2020, to still qualify for adjustment of status. USCIS stated that these groups of people had a significant reliance interest in the prior law.
Is this policy change legal? In my opinion it seems completely arbitrary, contrary to years of USCIS interpretation, and legally baseless. As such, I don’t expect the policy to withstand legal challenge, but those cases can take a long time. Because this is a change in policy rather than a change in law, a new president could undo this change quickly and easily.