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TPS Holders with Deportation Orders Applying for Green Card After Advance Parole

| Oct 7, 2019 | Adjustment of Status, Green Cards |

TPS applicants who are applying for adjustment of status with outstanding removal orders should be aware that the New Jersey District Office has reversed its policy with respect to these cases. Of course, every case is fact and circumstance specific, but in general, it now appears that individuals who initially entered without inspection, have been ordered removed, subsequently left and re-entered the US with advance parole are being deemed ineligible to adjust status before USCIS. The issue hinges on whether USCIS or the Immigration Court has jurisdiction to adjudicate an adjustment of status application filed by someone who has already been ordered removed. In most cases, the removal order is considered executed once a person under that order leaves the United States. Once an individual has a removal order, he/she is generally barred from the US for ten years unless an I-212 is filed and approved. In some cases, individuals who have returned with advance parole have filed I-212s in conjunction with their adjustment of status applications before USCIS. Now, the government’s posture is that USCIS does not have jurisdiction over such cases because the individual has not actually departed (in a legal sense) to trigger execution of the removal order. Moreover, if a person with TPS has left the US with advance parole, he/she technically returns to the US in the same immigration status he/she had prior to the departure. So, in other words, if an applicant had initially entered without inspection and left with advance parole, he/she shall be inspected and admitted “in the same immigration status the alien had at the time of departure”-namely, as an individual who has entered without inspection. And unfortunately, in general, unless the individual is eligible under section 245i, applicants who enter without inspection do not qualify to adjust status here in the US.

In short, individuals who fall into this type of situation may now find themselves in a legal quandary without any sensible or practical solution. It appears that if they file for adjustment before USCIS, their cases will be denied on the basis that their cases are still with the Immigration Court. (Presumably, a Motion to Reopen with the Immigration Court would have to be filed.) Additionally, since TPS advance parole applicants return to the same status they held prior to leaving, they are apparently not “paroled” for purposes of adjustment under the general provisions of INA 245a.

This is just one of several troubling developments that immigration attorneys are witnessing. If you are TPS applicant who has traveled on advance parole and are now looking to file for your green card, it would be to your benefit to evaluate your situation with experienced counsel prior to filing.

The above is general information only and not intended as legal advice. It does not create an attorney-client relationship, nor should it be relied upon in lieu of consultation with an attorney.

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