Supreme Court Rules TPS Doesn’t Erase Unlawful Entry 

In a unanimous decision, the U.S. Supreme Court determined that Temporary Protected Status (TPS) does not erase an unlawful entry and allow an individual to adjust status to legal permanent resident. The TPS program provides humanitarian relief to foreign nationals in the U.S. from countries designated for dangerous conditions, such as natural disasters or armed conflicts. The regulations state that for purposes of adjustment of status, a person granted TPS “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”  §1254a(f)(4).

The petitioner, Jose Santos Sanchez, challenged his green card denial, arguing that his Temporary Protected Status was sufficient to allow his permanent residence adjustment. USCIS found Sanchez ineligible because of his unlawful entry. 8 U.S. Code § 1255 states that eligibility for permanent residence requires an “admission” or “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”  §1101(a)(13)(A).

Justice Kagan wrote that “lawful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter.” While the petitioner argued that since a TPS recipient is considered a nonimmigrant, he must also be considered as admitted, the court disagreed and confirmed that:

“the immigration laws nowhere state that admission is a prerequisite of nonimmigrant status. So there is no reason to interpret the TPS provision’s conferral of nonimmigrant status as including a conferral of admission. In fact, contrary to Sanchez’s position, there are immigration categories in which individuals have nonimmigrant status without admission.”

Unless Congress changes the existing regulations, there is not a pathway to legal permanent residence (or citizenship) for individuals who entered the country unlawfully, even if they subsequently obtained a temporary nonimmigrant status.

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