The U.S. Supreme Court agreed to hear a case from the Third Circuit that will resolve the circuit split on whether a grant of temporary protected status (TPS) authorizes eligible noncitizens to obtain lawful-permanent-resident status. Sanchez v. Mayorkas, No. 20-315. Arguments for the case are set for April 19, 2021.

A circuit court split has existed for years regarding whether individuals who initially entered the United States without permission and subsequently were granted TPS were eligible to adjust status to permanent residence. Applicants for adjustment of status to permanent residence must show they were inspected and admitted or paroled into the United States to be eligible. The Sixth, Eighth, and Ninth Circuits found that TPS was considered an inspection and admission for adjustment purposes. The Third and Eleventh Circuits came to opposite conclusions. That means, for example, that TPS holders residing in Ohio can potentially adjust status, but TPS holders in neighboring Pennsylvania cannot. The difference in the courts’ opinions comes from the interpretation of whether Congress crafted the TPS statute to treat all TPS recipients as “nonimmigrants” under the Immigration and Naturalization Act who have been inspected and admitted, regardless of whether that inspection and admission occurred at a port of entry or within the United States.

With the Biden administration recently adding Venezuela and Burma TPS list, there are now 12 countries and over 400,000 individuals on the list. The other countries are El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen.

TPS protection is humanitarian relief granted to individuals residing in the United States who cannot return safely to their home countries due to ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. Although TPS beneficiaries can apply for employment authorization and travel authorization, and may apply for other immigration statuses if eligible. TPS is just a temporary stay of deportation, meaning that holders of the status have protection from removal or deportation from the United States. TPS is generally granted for up to 18 months with the possibility of renewal. Many TPS beneficiaries have been in the United States for more than two decades, are thoroughly entrenched in their communities, and have homes, jobs, and U.S.-born children.

Regardless of the Supreme Court’s decision, the proposed American Citizenship Act of 2021 would offer an eight-year path of citizenship for TPS beneficiaries. In conjunction with that, the House passed a stand-alone bill granting similar relief with some bipartisan support. This legislative solution would provide a straightforward path to relief if it can pass in the Senate. In the meantime, the Supreme Court’s decision could provide a very important benefit.

Jackson Lewis attorneys will provide updates on this matter as they become available.

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