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The Supreme Court says that a grant of Temporary Protected Status (TPS) is not an admission to the United States

This week, the United States Supreme Court issued an unanimous 9-0 decision in Sanchez v. Mayorkas, No. 20-315 (U.S. 2021) holding that a grant of Temporary Protected Status (TPS) does not count as an “admission” into the United States for the purposes of qualifying to become a Lawful Permanent Resident (LPR).

This decision effectively closes a path to becoming an LPR for many individuals in the United States that cannot return to their country of nationality.

TPS is available for individuals from a country that the U.S. Department of Homeland Security have determined to have unsafe conditions that temporarily prevent nationals of that country from returning.

Generally, to apply for an LPR while inside the United States, an individual must have been “inspected and admitted or paroled into the United States.” 8 U.S.C. § 1255(a).

In Sanchez v. Mayorkas, the Supreme Court determined that an individual who initially entered the United States unlawfully will not be considered to have been “inspected and admitted” into the United States if he or she is subsequently granted TPS. That individual will generally not be eligible to apply to become an LPR in the United States.

Relatedly, TPS recipients are eligible to apply for Advance Parole (AP) while in the United States, which provides authorization to appear at a U.S. port of entry to seek parole (reentry) to the United States after travelling abroad. It would seem that a TPS recipient who was approved for AP, travelled abroad, and was subsequently paroled into the United States would satisfy the “inspected and admitted or paroled” requirement. However, last year, the United States Citizenship and Immigration Services adopted a decision of its Administrative Appeals Office, Matter of Z-R-Z-C-, Adopted Decision 2020-02 (AAO Aug. 20, 2020), as official policy, which held that this type of authorized travel and reentry does not satisfy the “inspected and admitted or paroled” requirement.

Taken together, the decisions in Matter of Z-R-Z-C-, and Sanchez v. Mayorkas generally completely preclude an individual who initially entered the United States unlawfully but has since been granted TPS due to unsafe conditions in his or her home country from applying to become and LPR from inside the United States.

Alexander Farquhar
Senior Associate Attorney – Dallas, Texas
David Swaim and Associates, P.C.