In a unanimous opinion, the U.S. Supreme Court held that a person who enters the U.S. unlawfully is not eligible for an adjustment to permanent resident status, even if the person was granted temporary protected status. The ruling has implications for businesses seeking to sponsor employment-based green cards for certain workers.
The federal government grants temporary protected status (TPS) to eligible foreign nationals from designated countries experiencing dangerous conditions, such as armed conflicts and natural disasters. Currently, 12 countries are on the list: El Salvador, Haiti, Honduras, Myanmar, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Venezuela and Yemen. People with TPS may live and work in the U.S. for a limited time.
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Sanchez v. Mayorkas involves a married couple who entered the U.S. unlawfully from El Salvador in 1997 to escape unsafe conditions. The husband worked in the U.S. without authorization before obtaining TPS in 2001 when the U.S. government made El Salvador a designated country under the program in response to a series of devastating earthquakes.
The couple applied for lawful permanent resident (LPR) status through the husband’s employer in 2014, and the application was ultimately denied because the couple did not lawfully enter the country. U.S. Citizenship and Immigration Services (USCIS) said, “TPS provided no way around that bar.”
The high court upheld the USCIS decision. ”The TPS program gives foreign nationals nonimmigrant status, but it does not admit them,” the court said. “So the conferral of TPS does not make an unlawful entrant … eligible” for lawful permanent resident status.
The court noted, however, that immigration law does provide a way for a foreign national who is lawfully present in the U.S. on a temporary basis to obtain an “adjustment of status” to become a permanent resident.
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‘Adjustment of Status’
A USCIS process known as “adjustment of status” allows noncitizens who are lawfully present in the country to apply for LPR status (a green card) without having to return to their home country to complete the process. The Supreme Court said, with some exceptions, “a nonimmigrant’s eligibility for such an adjustment to permanent status depends … on an ‘admission’ into this country.” Specifically, immigration law requires an applicant for LPR status to be “inspected and admitted or paroled into the United States.”
In Sanchez, the petitioner’s employer applied for a visa for him as a skilled worker, and immigration officials approved the petition for LPR status for him and his wife. But the federal government subsequently denied their application to use the adjustment-of-status process because they initially entered the country without authorization. The high court sided with the government, holding that the Immigration and Nationality Act ”generally requires a lawful admission before a person can obtain LPR status.” The petitioner “was not lawfully admitted, and his TPS does not alter that fact,” Justice Elena Kagan wrote for the court. “He therefore cannot become a permanent resident of this country.”
Although more than 400,000 people have TPS in the U.S., not many have a family member or employer available to sponsor their transition to permanent residency. Those who do have a sponsor may have entered the U.S. without authorization. Under the Supreme Court’s ruling, people with TPS who entered the country without authorization will have to continue living with temporary status, which is renewable every 18 months until the government ends the TPS designation for their country of origin. A noncitizen who unlawfully entered the country and is seeking a green card may be barred from re-entry for up to 10 years.
Congress Has ‘Primary Role’
Some immigration law experts argue that the TPS program is meant to provide temporary relief rather than permanent residence. Other experts argue that many TPS beneficiaries have been allowed to stay in the U.S. for decades and have established businesses and families in the U.S. during that time. The Supreme Court justices relied on the statutory language as written by Congress. “We need to be careful about tinkering with the immigration statutes as written, particularly when Congress has such a primary role here,” said Justice Brett Kavanaugh.
Steve Vladeck, a Supreme Court analyst for CNN and a professor at the University of Texas School of Law, said, “The executive branch may have some authority to confer forms of temporary legal status on those who crossed the border without permission, but the Supreme Court … reinforced, however indirectly, that only Congress can provide a permanent answer.”
House Approves Bill to Establish Path to Citizenship
On March 18, the House of Representatives passed two bills that would establish paths to citizenship or legal status for millions of undocumented immigrants, including “Dreamers”—those brought to the country unlawfully as children—and agricultural workers. The chances of these bills getting enough Republican support in the Senate to pass and become law is low.