Two recent but separate government decisions, one by an appeals court and the other from the Department of Homeland Security, have adversely affected Temporary Protected Status (TPS) holders from some countries.
The U.S. government has the authority to designate a country for TPS if it has suffered armed conflict, natural disaster, or other extraordinary and temporary conditions which make it difficult for citizens temporarily outside the country to return. In designating a country for TPS, the U.S. government will limit beneficiaries of the program to those who have been in the U.S. continuously since the effective date of the TPS designation and who are not inadmissible to the U.S. based on certain crimes or national security. Currently, 10 countries are designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria and Yemen.
TERMINATION OF TPS FOR SUDAN, NICARAGUA, HONDURAS, NEPAL, HAITI AND EL SALVADOR
On September 14, 2020 a panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision lifting a lower court’s injunction that had stopped termination of TPS for Sudan, Nicaragua, Haiti and El Salvador. In other words, the court paved the way for the federal government to end TPS for those countries. According to the Los Angeles Times, “the decision affects 300,000 non-citizens and 200,000 of their children who are U.S. citizens.”
Although this ruling is devastating for those involved, all is not lost. First, immigration advocates will ask the whole court, not just the three-person panel that issued the most recent ruling, to reconsider and issue a decision. Second, USCIS has stated that termination of TPS will not take place for 120 days for Honduras, Nepal, Nicaragua, and Sudan, and for one year for El Salvador. Thus, if USCIS was truthful, a new administration will have the opportunity to reverse the current administration’s efforts to terminate TPS for these countries.
FOR SOME, ADVANCE PAROLE NOT QUALIFICATION FOR GREEN CARD APPLICATION
On August 20, 2020 USCIS adopted an administrative court’s ruling that a TPS holder’s entry to the U.S. on advance parole does not qualify him or her to apply for a green card, even if otherwise eligible.
In the U.S., a green card applicant must prove that he or she was inspected at the border and then either admitted or paroled into the country. Admission occurs when someone presents a valid visa for entry at the border. Parole occurs when someone is allowed to enter the U.S. without a visa for a humanitarian or other designated purpose.
Previously, a TPS holder who initially entered the U.S. without inspection, and subsequently exited the U.S.and returned with advance parole, could apply for a green card if otherwise eligible.
When USCIS formally adopted the Administrative Appeals Office’s August decision, the government accepted the stance that entry via advance parole under the conditions above does not constitute a valid parole necessary to obtain a green card.
USCIS stated that it will only apply this ruling to those who departed and returned to the U.S. with advance parole after the August 20 decision date. Further, Antonini & Cohen has filed a lawsuit on this issue. We hope to receive a decision soon from the U.S. District Court for the Northern District of Georgia.
SCHEDULE A CONSULTATION WITH ANTONINI & COHEN TO ADDRESS YOUR CIRCUMSTANCES
If you or a loved one will be affected by the actions above, seek guidance from the experienced attorneys at Antonini & Cohen Immigration Law Group. We’re here to assist with all of you and your family’s immigration needs. The attorneys at Antonini & Cohen understand the stakes in fighting to seek and achieve the American Dream. Antonini & Cohen has been successfully representing immigrant clients for many years. Visit us online or call us at (404) 850-9394 for assistance with any immigration issue you’re facing.
Marshall Cohen is one of the founding principals of Antonini & Cohen. Admitted to the Georgia Bar in 1989, he has practiced immigration law exclusively for over 30 years. Mr. Cohen practices all areas of immigration law including family and employment cases, temporary and permanent visas, naturalization, deportation defense, and federal litigation.