On July 31, 2019, USCIS issued an important policy memorandum adopting a case decided by the Administrative Appeals Office. The case is Matter of H-G-G, decided by the AAO on July 31, 2019. This case is particularly relevant to individuals who hold Temporary Protected Status (TPS). The gist of the case is essentially that while TPS provides a form of insulation from removal, a grant does not confer admission or cure a previous failure to lawfully maintain status. This is especially significant in the context of adjustment of status because an applicant must demonstrate lawful inspection and/or parole under section 245a; moreover, an individual who has failed to continuously maintain lawful status will generally be ineligible for adjustment under section 245c. In some jurisdictions, particularly the Sixth and Ninth circuits, applicants have successfully argued that TPS is a form of admission for purposes of adjustment of status-in effect, allowing them to adjust status although they may have initially entered without inspection. H-G-G strongly contravenes this interpretation, holding that TPS is a humanitarian measure intended to facilitate a grantee’s eventual departure from the US, not a legal panacea that creates a path to residence or situates someone better than what they were before. As the AAO notes: “We find nothing in the statutory scheme or the legislative history to suggest that Congress intended to also confer new eligibilities on those who did not have them in the first place.”
In practical terms, this is just another step towards a general movement to restrict adjustment of status eligibility. USCIS must follow caselaw in the Sixth and Ninth Circuits, which hold that a grant of TPS does constitute an admission for purposes of adjustment. However, in all other jurisdictions, USCIS will follow Matter of H-G-G. Furthermore, in all jurisdictions, USCIS’s posture will align with H-G-G’s holding that a grant of TPS does not cure prior unlawful status.
Given USCIS’s new Notice to Appear policy, it is critical that applicants carefully assess the viability of their prospective cases before filing. A miscalculation or misinterpretation can lead to denial and potential exposure to removal proceedings, especially once a grant of TPS has expired. The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.