Supreme Court Ruling Heightens Need for SECURE Act’s Passage

On June 7, 2021, the U.S. Supreme Court ruled that being granted Temporary Protected Status (TPS) does not equate with having been “admitted” to the U.S. for purposes of being able to get residency from within the U.S.

The ruling affects TPS holders who originally entered the U.S. without being inspected at a border post, who become eligible to apply for permanent residency, typically as the parent of an over 21 year old U.S. citizen child, or as the spouse of a U.S. citizen or permanent resident.

With few exceptions, to be able to “adjust status” to permanent resident in the U.S., one must have been “inspected and admitted.”  A person ineligible for “adjustment” must instead have an immigrant visa interview at the U.S. consulate, ordinarily in their home country.  For a person who has lived in the U.S. for more than a year without legal status prior to getting TPS, departing the country to go to the consular interview will trigger a 10 year bar to returning to the U.S.  It’s possible to apply for a waiver of that 10 year bar, but it’s extremely complicated and difficult to get.  If that same person could “adjust status,” the 10 year bar wouldn’t be triggered and the process of being approved for residency would be relatively smooth and uncomplicated, without the prospect of prolonged family separation and emotional and economic hardship.

The Supreme Court’s ruling reversed a lower court’s finding that the language of the TPS statute allowed a person granted TPS to be treated as having been admitted to the U.S. and eligible to “adjust status” even if the person originally entered the U.S. without inspection.

The U.S. has nearly 320,000 individuals with TPS, and that number will grow exponentially with the recent decisions expanding TPS eligibility to individuals from Burma (Myanmar), Haiti and Venezuela.  Over 250,000 of them are Hondurans and Salvadorans who have been here for more than 20 years, who are parents to U.S. citizen children who may be approaching the age of 21 when they can legally begin the family-based immigration process for their TPS parents.  The recent Supreme Court decision means that most of these TPS parents will have to consular process and face the prospect of the 10 year bar to returning.

TPS holders now have deep roots in this country, with many having lived in the U.S. longer than they lived in their home countries.  They have families and employers who depend upon them.  Having TPS holders face the 10 year bar in order to finally gain permanent residency benefits no one, except perhaps the immigration lawyers they’ll need to hire in hopes of preparing a successful waiver application.

The SECURE Act (S. 306) would allow the vast majority of TPS holders to apply for permanent residency if they have lived here continuously for at least three years and pass all criminal history and national security checks (which they have had to pass each time they register for TPS).  Given the deep roots that hundreds of thousands of them have in this country and their importance to the U.S. workforce, providing them with an independent path to residency without the need to depart the U.S. is both humane, and the economically smart move.