In a disappointing departure from the Sixth and Ninth Circuits, the Third Circuit recently published its position on TPS in Sanchez; Gonzalez v. DHS. In a precedential decision, the court held that TPS does not constitute an “admission” for purposes of adjustment of status under 8 USC 1255. Parsing through sections 1254a and 1255, the court distinguishes between lawful status and admission-two different and independent concepts. Essentially, while a grant of Temporary Protected Status confers “lawful status” upon an individual, that grant does not translate into “lawful admission”-which technically requires an inspection/admission or parole. In most cases, an applicant for adjustment of status must demonstrate 1) that he/she has been inspected/admitted/paroled and 2) he/she has not failed (other than through no fault of his own or for technical reasons) to continuously maintain lawful status since entry into the US. According to the holding, TPS will solve or cure the second prong for purposes of adjustment of status. However, if an individual entered the US without inspection-notwithstanding that he/she may currently have TPS-he/she will nevertheless be ineligible to apply for adjustment (subject to certain exceptions, of course, such as section 245i of the INA) due to the deficient first prong.
In practical terms, this decision is starkly at odds with decisions coming out of the Sixth and Ninth circuits involving the same issues. Individuals in those jurisdictions, fortunately, by and large, are able to apply for adjustment (provided, of course, all other eligibility requirements have been met). In those jurisdictions, an individual who entered without inspection but who has been vetted and gone through the process to be granted TPS has, in effect, been granted an inadmissibility waiver and been admitted.
The Third Circuit covers the following states: New Jersey, Pennsylvania, Delaware, and the Virgin Islands. The Sixth Circuit holds jurisdiction over Kentucky, Michigan, Ohio, and Tennessee. The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
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.