Interesting issues with Temporary Protected Status

Recently, I encountered two issues with an area of law that I was formerly rather unfamiliar with - Temporary Protected Status. For the uninitiated, TPS is a form of status for individuals from certain countries that are suffering from natural disasters, civil wars, and other extraordinary circumstances. Because TPS is only intended for temporary relief, it is a rather flimsy status. However, for many undocumented people, it is the only hope of living in the U.S. legally. Thus these individuals want to get as much out of their status as possible.

  Issue #1 The TPS Trick

 Can someone eligible to adjust status to permanent resident do so from TPS status? Yes. A person with TPS is considered "in status." Here's the catch: many people entered the U.S. illegally before getting TPS status. These people can't adjust because of their unlawful entry. But there's currently a neat little trick you can do to get around this. This only works for immediate relatives, i.e. children, parents, and spouses of U.S. citizens.

 Here's what you do. You apply for "advance parole." This is a travel document for, among other things, people with TPS. With the advance parole the person leaves the country and then comes back in. If that person is an immediate relative, he has cured his illegal entry. Sounds simple, right? Not so fast.

 If the person was here unlawfully before getting TPS status from 6 months to 1 year, he has a three-year bar before he can adjust status. If he was here for more than one year, he has a ten-year bar before he can adjust status. Where did the bar come from? If you leave the country after being here between 6 months and a year unlawfully, you have a three-year bar to admission. If you leave and have been here more than one year, you have a ten-year bar.

 So why can the person get back in with advance parole? It's for humanitarian purposes and advance parole is not really considered an admission according to immigration law. So what to do about the bar? If you're the child or spouse of a US citizen, you apply for a hardship waiver. If you can prove hardship, you get to adjust without waiting for the bar. But what if you're a parent of US citizen? Too bad - the waiver doesn't apply to you. Currently, the law allows for the person to wait for the bar to pass inside the U.S. A parent of a U.S. citizen that triggered the 10-year bar by using advance parole could potentially adjust status in 10 years.

 But this is dangerous! What if TPS ends? What if the current interpretation changes? It's a scary choice but the only current way for someone in this situation to adjust and possibly stay in the U.S at the same time.


Issue #2 After-arriving Children

 Everyone with TPS has to have been present at the time of initial registration for the country the person is from. So what if you have a child that arrives after that date. Can they get TPS as a derivative? According to the 3rd and 4th Circuits - NO! The child would have to have been present on the date required for those with TPS status. Is this the end of the story? Possibly, no.

 Each circuit can decide differently. If this situation came up for litigation, our 9th Circuit could go the other way and say the after-arrived child could register as a derivative. So what should after-arrived children do in the 9th Circuit? Don't apply for TPS unless you want to get placed in deportation proceedings and serve as the test case! Sure you might get to stay and be an immigration precedent-setting hero. But you could get deported.

 I'm keeping an eye on this issue to see what happens. Maybe we'll get some good news on it one of these days.