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Volume XI, Number 260

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Supreme Court Rules on Noncitizens Granted Temporary Protected Status

In Sanchez v. Mayorkas, 593 U.S. ____(June 7, 2021), the U.S. Supreme Court resolved the circuit split on whether a grant for temporary protected status (TPS) authorizes eligible noncitizens to adjust status to lawful permanent resident even if they entered the United States unlawfully – the Court held that it does not.

Previously, courts in the Sixth, Eighth, and Ninth Circuits have held that the grant of TPS cured the unlawful admission, allowing individuals in those Circuits to adjust status.

TPS grants temporary humanitarian relief from deportation to individuals from certain countries where, due to natural disaster or armed conflicts, conditions are too dangerous for the individual to return. The TPS section of the Immigration and Nationality Act (INA), in Section 1254a(f)(4), establishes that individuals granted TPS are maintaining lawful nonimmigrant status. The INA also provides that a nonimmigrant may adjust status to permanent resident based upon “a lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Sanchez rests on whether there is an “indissoluble” link between “the conferral of nonimmigrant status” and the “conferral of admission.” The Supreme Court in this unanimous decision held that there was no such link. The Court held that the legal-entry requirement is distinct and independent.

With no link between the grant of TPS and the concept of “admission” to the United States, the decision creates two outcomes for TPS recipients: (1) those who entered legally are potentially eligible to adjust status to lawful permanent resident; and (2) those who entered the United States unlawfully are not eligible to adjust status to lawful permanent resident.  While Jose Santos Sanchez loses out, others still receive the desired benefit.

Justice Elena Kagan, writing for the Court, notes that there is pending in Congress the American Dream and Promise Act that specifically states that “a TPS recipient shall be considered ‘as having been inspected and admitted into the United States, ’ as being in, and maintaining, lawful status as a nonimmigrant . . . .” She also states that the Court simply cannot read that into the current statute.

In the past, some TPS beneficiaries were able to overcome their initial unlawful admission and adjust status by travelling outside of the United States and re-entering using Advance Parole. But that loophole was closed by a policy change in August 2020.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 158
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Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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Michael H. Neifach Jackson Lewis Employment visa Lawyer border security matters attorney
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Michael Neifach is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is a recognized leader on immigration, visa and border security matters, and he is Co-Leader of the firm's Immigration practice group.

Mr. Neifach has held senior positions at the White House Homeland Security Council, U.S. Department of Homeland Security, and U.S. Immigration and Customs Enforcement (ICE). He served as General Counsel at ICE from July 2007 through January 2009. Following his government service, Mr. Neifach oversaw...

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Otieno B. Ombok, Jackson Lewis, I9 Compliance Lawyer, immigrant visa petitions Attorney
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Otieno B. Ombok is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Mr. Ombok specializes in all aspects of employment-based non-immigration and immigrant visa petitions. He also advises on I-9 compliance issues as well as outbound immigration matters. He has a natural facility in addressing client issues such advises both U.S. and foreign employers with regard to immigration matters. He has a natural facility in addressing client issues pertaining to healthcare visas for medical professionals,...

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