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Court Rules TPS Meets Inspection and Entry for 245 Adjustment of Status

| Mar 16, 2016 | Adjustment of Status, Temporary Protected Status |

A District Court out of Minnesota recently issued a significant decision regarding the eligibility of those who hold Temporary Protected Status (“TPS”) to adjust status in the US notwithstanding a prior lack of entry. This case, Bonilla vs. Johnson, et. al, follows the logic of a similar Circuit case (Flores v. USCIS) that holds that the plain language of 8 USC 1254a(f)(4) clearly allows an individual who is granted TPS to satisfy the inspection and entry requirement for adjustment of status. The section says, in part: “for purposes of adjustment of status under section 1255 of this title and change of status under section 1258 of this title, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” The government argued, unsuccessfully, that a grant of TPS did not constitute inspection and entry for purposes of adjustment. The Court held otherwise, noting that the statute was clear and unambiguous.

The practical impact of this ruling, at least in Minnesota, is tremendously important, as it may allow individuals holding TPS, who would not otherwise be able to file for adjustment because they entered the country without inspection, to now file if the sole basis of ineligibility pertained to the issue of entry. It is important to understand, of course, that inspection and entry is only one of several requirements that must be met in order to satisfy eligibility for adjustment of status under section 245 of the Immigration and Nationality Act. An approved underlying petition (i.e., an I-130 or I-140) as well as visa availability, among other things, must also be established. Additionally, the individual must also demonstrate that he/she is not inadmissible to the United States. Criminal convictions, fraudulent conduct or misrepresentation in connection with applying for immigration benefits, as well as outstanding removal or deportation orders can easily form the basis of a denial, notwithstanding that the applicant may be able show inspection (either through a visa or grant of TPS).

It is also important to recognize that this decision is not binding on other jurisdictions or states. The logic of the decision is compelling, but there are other decisions out there, such as Serrano v. United States Attorney General, out of the 11th Circuit, that holds otherwise. Moreover, this decision as well some of the favorable cases that it cites, refer specifically to an individual who entered without inspection, was subsequently granted TPS, and sought to adjust status based on a petition where visa availability was established. This is different than and should be distinguished from a factual scenario where the individual granted TPS applies for and receives permission to travel outside the US (in the form of Advance Parole), does so, returns via parole, and then applies for adjustment of status based on an underlying petition. Under those circumstances, the individual may be able to successfully argue that he/she has satisfied the inspection/entry requirement through the subsequent entry using the advance parole even though the initial entry was without inspection. As is hopefully evident, this area of law is constantly in flux and highly case sensitive. No individual should leave the US without consulting with an immigration attorney first. Along the same lines, it would be prudent for any person holding TPS seeking to adjust status, to consult with a lawyer first to review eligibility and the current law/practice in his or her jurisdiction.

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