Written by: Ignacio Sanz Perez
The Eighth Circuit Court of Appeals upholds TPS holders’ right to seek legal permanent residency “regardless of whether they entered the United States without inspection.” Velasquez v. Barr., No. 19-1148, at 14 (8th Cir. 2020). In practical terms, this means that receiving TPS status cures the manner of entry for those who came without inspection and remained in the United States.
This decision benefits TPS residents in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota (States within the 8th Circuit). Before, a similar rule would only extend to resident from Alaska, Arizona, California, Guam, Hawaii, Idaho, Kentucky, Michigan, Montana, Northern Mariana Islands, Nevada, Ohio, Oregon, Tennessee, and Washington.
To become a permanent resident in the United States, eligible applicants must be in lawful status and entered the country after being inspected and admitted -exceptions may apply. It’s undisputed that TPS beneficiaries “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” 8 U.S.C. § 1254a(f)(4). However, the Department of Homeland Security claims that TPS recipients must also be separately inspected and admitted when they previously entered without inspection.
In Velasquez, the Appeal Court settled this unnecessary conundrum: TPS recipients “must also be considered ‘inspected and admitted’ under § 1255(a)”. Velasquez v. Barr., No. 19-1148, at 8 (8th Cir. 2020). TPS equals an admission into the United States “for purposes of adjustment of status,” meaning that TPS holders who are otherwise beneficiaries of a family or employment petition are eligible to adjust status of a legal permanent resident.
With this holding, the 8th Circuit Court joined the 6th and 9th Circuit Courts of Appeal. However, given that the 5th and 11th Circuit Courts of Appeal disagree with this result, the split increases the possibility that this case may end up before the U.S. Supreme Court, which now enjoys a substantial 6-3 conservative majority that could side with the position pushed by the Department of Homeland Security.
If you happen to be a TPS recipient residing in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, we strongly recommend you seek legal advice as soon as possible because a new path for a green card may have opened for you.