MEMO RE: ADJUSTMENT OF STATUS FOR APPLICANTS WITH TPS AND ADVANCED PAROLE

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1 MEMO RE: ADJUSTMENT OF STATUS FOR APPLICANTS WITH TPS AND ADVANCED PAROLE To: DePaul University CBO Partners From: DePaul University Asylum & Immigration Law Clinic Date: September 2010 Re: Adjustment of Status for Applicants with TPS and Advanced Parole Dear CBO Partners, Recently, we have received a number of technical assistance requests dealing with adjustment of status for applicants with Temporary Protected Status ( TPS ) and advanced parole. Since the US CIS Chicago office is leery of these cases, we thought it might be useful to explain the position that they have taken on this issue. Please find a detailed analysis below. As always, if you have any questions, please don t hesitate to contact us directly. Issue: Can an individual with Temporary Protected Status, who has left and re-entered the country with advanced parole, qualify for adjustment of status under INA 245(a)? Analysis: As you all know, under INA 245(a), in order to qualify for adjustment of status here in the United States, an individual must have been inspected by an immigration officer and either admitted or paroled into the United States. It further requires that an individual be admissible to the United States. In many of the cases we have seen, the client originally entered the United States without inspection but has maintained temporary protected status since the inception of the program. (TPS for El Salvador began in February 2001; TPS for Honduras began in May 2000.) After obtaining TPS, the clients have left the United States under a granted application for advanced parole (USCIS Form I-131). After re-entering through parole, the client wishes to adjust status through a family-based I-130. Several questions remain unanswered in this scenario. Does TPS stop the clock for purposes of calculating unlawful presence? If the client has triggered the 3 or 10 year bar by leaving the US under advanced parole, can the client then serve the 3 or 10 year bar inside the United States? Does the client qualify under 245(a) after having been paroled back into the United States notwithstanding their initial entry without inspection into the United States? Each question will be looked at in turn.

2 Does Temporary Protected Status Stop the Clock for Unlawful Presence? As you know, the Immigrant Responsibility and Illegal Immigration Reform Act ( IRAIIRA ) created new grounds of inadmissibility preventing admission to the United States. IRAIIRA created what we call unlawful presence bars to admission. Under INA Sec. 212(a)(9)(B)(i), any alien who (I) was unlawfully present in the United States for a period of more than 180 days, but less than one year, voluntarily departed the United States and again seeks admission within 3 years of the date of such alien s departure [is inadmissible] (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien s departure or removal is inadmissible. Unlawful presence is a legal term of art defined at INA Sec. 212(a)(9)(B)(ii) to include [an individual s presence] in the United States after the expiration of the period of stay authorized by the Attorney General or [the time in which an individual] is present in the United States without being admitted or paroled. The effective date of the IRAIIRA unlawful presence provisions is April 1, Thus, any period prior to April 1, 1997 should not be considered for purposes of calculating an individual s period of unlawful presence. The question of whether or not unlawful presence continues to accrue once someone has obtained temporary protected status is fairly straight forward. The USCIS website indicates that it does not: Q. May I apply for another immigration benefit while registered for TPS? A. Yes. Registration for TPS does not prevent you from applying for non-immigrant status, filing for adjustment of status based on an immigrant petition, or applying for any other immigration benefit or protection for which you may be eligible. INA 244(a)(5), 8 U.S.C. 1254a(a)(5). For the purposes of change of status, and adjustment of status, an alien is considered to be in, and maintaining, lawful status as a nonimmigrant during the period in which the alien is granted TPS. See INA 244(f)(4), 8 U.S.C. 1254a(f)(4). However, if an alien has periods of time when he or she had no lawful immigration status before, or after, the alien s time in TPS, those period(s) of unlawful presence may negatively affect the alien s ability to adjust to permanent resident status or attain other immigration benefits, depending on the circumstances of the specific case. See e.g., INA 212(a)(9), 8 U.S.C 1182(a)(9), (unlawful presence ground of inadmissibility that is triggered by a departure from the United States). In some cases, the alien may be eligible for a waiver of the unlawful presence ground of inadmissibility, or certain other grounds, when applying to adjust to permanent resident status or for another immigration status a4e49c110vgnvcm arcrd&vgnextchannel=17dcb6f2cae63110vgnvcm aRCRD We believe that this provision makes it clear that unlawful presence does not continue to accrue where an individual has acquired temporary protected status ( TPS ). Rather, TPS is considered a period of authorized stay by the attorney general. Thus, any period of time when the client is in TPS should not be considered for purposes of calculating the period of unlawful presence. However, if the noncitizen was in unlawful presence before or after the time in TPS status, that time would count for purposes of the 3/10 year bars.

3 Can the Client Wait Out the Three and Ten Year Bar in the United States After a Lawful Reentry with Advanced Parole? If a client accrued the 180 days or 1 year of unlawful presence before leaving and reentering with advance parole, the client is now subject to the 3 or 10 year bar. Now the client would like to apply for AOS. Will the client be able to wait out the 3 or 10 years in the US? USCIS has spoken directly to the issue of whether departures under advanced parole trigger unlawful presence bars. In a 1997 Memo from the Office of Programs, the Service indicates that departure (even under advanced parole) will trigger the bars. And, more importantly, that reentry under parole is not comparable to admission. Specifically, that one does not have to make the same showings under an application for parole such that the government could not have already decided the issue of an individual s admissibility for purposes of the 3 or 10 year bar. See Memo, Office of Programs, Advanced Parole for Aliens Unlawfully Present in the United States for More than 180 Days, HQIRT 50/5.12, Nov. 26, 1997, attached for your review. Thus, a departure under advanced parole will trigger the unlawful presence bars, and those bars will not be cured upon reentry under parole. The grant of advanced parole creates a somewhat unusual situation. Namely, that a person can legally re-enter the United States notwithstanding their inadmissibility issues. Former INS, in the 1997 Memo, was directed NOT to allow individuals to leave under advanced parole where it was clear that they could not obtain a waiver of their unlawful presence. See Id. However, the Memo was silent as to whether or not an individual could serve the unlawful presence bar while waiting inside the United States. There are statutory arguments and other policy statements that would lead us to believe that these bars can be served while within the United States. USCIS Chicago District, notwithstanding these authorities, does not agree. As a review of those authorities, the statutory language at INA 212(a)(9)(B)(i)(I)&(II) specifically states An alien who was unlawfully present in the United States for a period of [more than 6 months] and seeks admission within 3 years of the date of such alien s departure is inadmissible... has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien s departure or removal from the United States, is inadmissible. The event that triggers the 3/10 year waiting period is the departure. The statute is silent with regard to where the person must wait before seeking admission. At this time, the only case on point is an unpublished AAO decision granting an individual adjustment of status and waiving the waiver requirement. See, AAO Decision from Phoenix dated June 2, 2004, attached for your review. In this case, the applicant had waited out the three years in the United States prior to filing for adjustment. Please note that this AAO decision is unpublished and not binding on the USICS Chicago local office. More recently, Lynden Melmed, Chief Counsel (2009) stated in a letter, now made public, indicating that the 10 year bar can be served while in the United States. See Melmed Letter to Daniel C. Horne, January 26,

4 2009, attached for your review; See also, letter from Robert Divine, Chief Counsel, USCIS, to Attorneys David B. Perry and Ronald Y. Wada (July 14, 2006). Notwithstanding this policy position, the USCIS local office recently stated in a meeting with AILA: In earlier liaison meeting with the Chicago Chapter of AILA, the Chicago Field Office promised to review its policy whether the three-year bar under 212(a)(9) of the Immigration and Nationality Act can be satisfied while the applicant is physically present in the U.S. Despite the existence of advisory letters written by two former Chief Counsels of USCIS addressing this issue, the Chicago Field Office is in the process of seeking more formal clarification on the issue through its own internal chain of authority. Until they have further clarification, the Chicago Field Office will hold such cases in abeyance. As a result, it does not appear that an applicant for TPS, who left under advanced parole and triggered either the three or ten year bar, will be allowed to wait out the bar in the US under the current Chicago local office policy. However, the larger issue, at this point, is that the Chicago Field Office will not even consider these applications for adjustment under INA 245(a). Does Temporary Protected Status create an admission for purposes of qualifying for INA Sec. 245(a)? INA 244(f)(4) governs Temporary Protected Status. This provision states that for purposes of adjustment of status under [INA 245] of this title the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant. What is unclear is whether or not in and maintaining lawful nonimmigrant status will be treated as having made an admission for purposes of adjustment under 245(a). Unfortunately the Code of Federal Regulations is silent on this issue. A legal opinion from the Office of the General Counsel for INS dated March 4, 1991, indicates that an alien who entered the United States without inspection is ineligible for adjustment of status. A grant of temporary protected status would not make the alien eligible. Note: As always, in situations where the person has failed to maintain status or worked without authorization, but entered with admission or parole, only IRs are eligible to adjust status under 245(a). If a person in TPS subsequently leaves and reenters with advance parole, does this constitute parole for purposes of 245(a)? A US CIS Memo from 1991 states departure and return under advance parole would relieve an alien of ineligibility for adjustment only if the alien is classified as an immediate relative. See Legal Opinion, Virtue, Acting G.C. (Mar. 4, 1991), reprinted in 68 No. 15 Interpreter Releases 461, (April 22, 1991), attached for your review. HOWEVER, Notwithstanding this guidance, the USCIS Chicago Field Office has explicitly stated that they don t want people obtaining advanced parole simply to get around 245(a), even if they are immediate relatives. They assert that, in doing so, these clients are manipulating the immigration system. Therefore, if your TPS applicant for adjustment originally entered the US without inspection, and subsequently left and reentered on advance parole, the US CIS

5 Chicago office is likely to take the position that they do not qualify under 245(a). Their cases should be analyzed under 245(i) as well or referred to private counsel for representation. As usual, we are happy to answer case specific or general questions on this issue. Please don t hesitate to contact us. Sincerely, The DePaul University Asylum & Immigration Law Clinic