Jersey City, New Jersey – In a disappointing decision on July 22, 2020, the Third Circuit Court of Appeals ruled a grant of Temporary Protected Status (“TPS”) is not an “admission” under immigration law. The impact of this decision within the territory of the Third Circuit (New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands) is immediate and devastating to many.

Some background will help those unfamiliar with this specific area of law understand. Admission is a term of art in immigration law, which means it has a particular definition by statute that is different than the dictionary definition of the word. Admission means a person was “inspected and admitted” at a port of entry into the U.S. In other words, it means that a person was inspected by Customs and Border Protection by reviewing documents and answering questions.  A person who is admitted into the U.S. is permitted to adjust status to Lawful Permanent Resident (“LPR” or “green card holder”). A person who is not admitted, cannot adjust status.

TPS is a status created by the U.S. government for persons from countries who have suffered conditions that make returning to that country impracticable or dangerous. For example, after a devastating earthquake, hurricane, outbreak of deadly contagious disease or military conflict, Congress may grant TPS to people from such a country who are already in the U.S. so they do not have to return to their native countries. Typically, though not always, once such a status is granted, it has to be renewed every few years, but is usually not withdrawn. In order to obtain TPS, a person must apply, meet all the conditions and pass a background check. There are hundreds of thousands of people in the United States who have been granted TPS; some have held that status for decades.

If a grant of TPS is considered an admission, a TPS holder may adjust status to green card holder if s/he otherwise qualifies – such as through a US citizen child or spouse. In the Sixth Circuit (Illinois and surrounding states) and the Ninth Circuit (California and western states), the Courts of Appeals have previously ruled that a grant of TPS is an admission for immigration purposes. There was a lot of reason to hope and believe the Third Circuit would decide the same way, but it did not. Rather, the Third Circuit held a grant of TPS is not an admission, so for TPS holders living in the Third Circuit, they still cannot adjust status unless they were inspected and admitted at the border.

Because the Third Circuit disagreed with two other circuit courts, there is a strong chance this issue will eventually be decided by the United States Supreme Court. The upside of that is the Court could decide TPS is an admission and all TPS holders will be able to benefit. The downside, is the Court could agree with the Third Circuit and TPS would not be an admission anywhere in the U.S.

For those with TPS in the Third Circuit, all hope is not lost. There may be other ways to obtain admission, you may have already been admitted or there could be other solutions. If you have TPS and a relative who can petition for you to become a green card holder, call the immigration lawyers in Jersey City at the Law Office of Eric M. Mark to discuss your options.

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