By Yingfei Zhou, Esq.
The federal District Court for the Eastern District of Pennsylvania recently ruled that a noncitizen’s grant of Temporary Protective Status (TPS) qualifies as “inspection and admission” into the United States. This decision follows the similar decisions issued by the Sixth Circuit of Appeals and the District Court for the Western District of Washington. This new ruling will affect a group of TPS beneficiaries who fall within the geographic boundaries covered by the court and are seeking to become a Lawful Permanent Resident (LPR) on the basis of marriage to a U.S. citizen.
The Secretary of Homeland Security may designate a foreign country for TPS due to the conditions (such as ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions) in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.
The sole issue in the matter is whether the grant of TPS is sufficient to meet the requirement of being “inspected and admitted or paroled into the United States for purposes of adjustment of status. Under the Immigration and Nationality Act (INA), inspection and admission are eligibility requirements for adjustment of status to LPR. In other words, only individuals who were “inspected and admitted or paroled” into the U.S. by an immigration officer may apply for LPR status from inside the U.S. Those who crossed the border without passing through an official checkpoint must leave the country to have their paperwork processed by the U.S. consulate abroad to obtain the LPR status. Departing U.S. to have paperwork processed from abroad might cause penalties to the immigrants or have them facing the dangerous conditions that merited the TPS designation.
The Court based its decision on the language of the TPS statute and find that “admission” can occur in a manner other than by physical entry and inspection. By the very nature of obtaining nonimmigrant status, the alien goes through inspection by a consular officer and is deemed “admitted”. In turn, a person under TPS shall be deemed to have satisfied all of the requirements of nonimmigrant status, including admission after inspection.
This issue is currently pending before the Ninth Circuit Court of Appeals.
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