A Temporary Protected Status beneficiary who entered without inspection may be eligible to adjust status.


In a decision dated June 4, 2013 (Flores v. USCIS), .the U.S. Court of Appeals for the Sixth Circuit found that the plain language of INA §244(f)(4) supports a path to legal permanent residence status under §245 for a Temporary Protected Status (“TPS”) beneficiary who initially entered the U.S. without inspection.  U.S. Immigration and Citizenship Services’ (“USCIS”) position was that if an individual entered without inspection and/or had periods of unlawful presence prior to or after being granted TPS, he or she could be ineligible for adjustment of status under INA 245 or needed to obtain a waiver of inadmissibility. In Flores v. USCIS, the plaintiff had been in the United States for about fifteen years.  He had roots here.  His wife and minor child (both U.S. citizen) were here.  He was of good moral character, a contributing member of society and had filed for adjustment of status through the immediate relative visa application. USCIS approved the I-130 petition but denied the I-485, Application to Adjust Status as ineligible under INA 245. This meant that under USCIS’s interpretation, the beneficiary would have had to leave the United States, be readmitted, and then go through the immigration process all over again.  The court disagreed, noting that the statute should be interpreted exactly as written – as allowing the beneficiary to be considered as being in lawful status as a nonimmigrant for purposes of adjustment of status. The court of appeals took the position that the plain language of INA §244(f)(4) supports a path to legal permanent residence under §245 for a TPS beneficiary who initially entered the U.S. without inspection, reversed the district court’s judgment and remanded the case to the USCIS for review.

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Buchanan Ingersoll & Rooney PC | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.