Undocumented immigrants protected by Temporary Protected Status (TPS) who obtain permission to travel abroad and then return to the United States will be eligible to apply for adjustment of status and obtain legal permanent residence.
This was announced this Friday by the Office of Citizenship and Immigration Services (USCIS). The agency indicated that the decision was made by the Administrative Appeals Office (AAO) of the immigration service after reviewing the case known by the acronym Z‑R‑Z‑C-.
According to the new policy, the service will “no longer use the advance parole mechanism to authorize travel for TPS beneficiaries, but will instead provide a new travel authorization document.”
This document, it adds, “will serve as proof of the prior consent to travel contemplated in the immigration law (NA 244(f)(3)) and serves as evidence that the bearer can be inspected and admitted as a TPS holder in accordance with MTINA (Miscellaneous Immigration and Naturalization Technical Amendments of 1991) if all other requirements are met,” it adds.
“Inspected and admitted means that the TPS holder, once presented at a port of entry after an authorized trip abroad, is lawfully admitted to the United States. That entry is what will allow you to make the adjustment,” explains José Guerrero, an immigration attorney who practices in Miami, Florida.
But Guerrero warns that “in order to apply for residency, departure and admission upon return do not automatically grant residency (green card or green card). The foreigner must have a legal way to do so, such as the petition of a US spouse, which gives him the right to apply for residence.
TPS holders who have US citizen children over the age of 21 also qualify.
Matter ZRZC- states that a TPS beneficiary who is granted authorization to travel temporarily abroad pursuant to section 244(f)(3) of the Immigration Act (INA) and who subsequently re-enters the United States using a USCIS travel document, restores the same immigration status the alien had at the time of departure, unless the alien is inadmissible for certain criminal or national security reasons or obtains an immigrant or nonimmigrant visa and the presents for admission to the country.
By rescinding Matter ZRZC, TPS beneficiaries who process and obtain a new travel document from USCIS and upon return are inspected and admitted, will be
“present in the United States pursuant to lawful admission” which will allow them to use that lawful entry “including for purposes of adjustment of status under Section 245 of the INBA.”
“This is true even if the TPS beneficiary was present without admission or parole when initially granted TPS protection,” the memo adds.
The agency also explained that, “in adjudicating an application for adjustment of status or any other benefit application when applicable, it will consider whether to apply this guidance to travel made by the applicant before the issuance of this memorandum” (retroactive).
“This consideration will include a case-by-case review of any reliance on the prior policy, applicable law, as well as any other factors relevant to the application of this guidance to prior travel,” it said.
The new policy also indicates that, to be eligible for consideration under this guide, once the trip has been made and returned to the United States, the TPS holder must meet each of the following requirements:
- Obtained prior authorization to travel abroad temporarily on the basis of being a beneficiary of TPS;
- The non-citizen’s TPS was not withdrawn or the designation for their foreign state (or part of a foreign state) did not terminate or expire during their travel;
- The non-citizen returned to the United States pursuant to the travel authorization; Y
- Upon return the non-citizen was inspected by the former Immigration and Naturalization Service (INS) or the Department of Homeland Security (DHS) at a designated port of entry and paroled or otherwise authorized to enter the territorial limits of the United States according to the TPS based travel authorization.
In turn, the new USCIS policy states that the guide DOES NOT APPLY TO:
- Travel by non-citizens whose TPS was not valid for the duration of the trip;
- Those who traveled without obtaining prior authorization under INA 244(f)(3);
- Who did not return in accordance with prior authorization under INA 244(f)(3);
- Who were not inspected at a designated port of entry;
- Who were found inadmissible for the reasons specified in INA 244(c)(2)(A)(iii) upon return from authorized travel; me
- Who were paroled or authorized to enter the United States on a basis other than TPS-based travel authorization.
Response to Supreme Court ruling
For Alex Gálvez, an immigration attorney who practices in Los Angeles, California, the annulment of Matter Z‑R‑Z‑C- by the Office of Administrative Appeals (AAO) “is in response to a ruling pronounced last year by the Supreme Court, which unanimously ruled that TPS holders do not have access to the green card.”
In a 9-0 decision, the Supreme Court ruled that Temporary Protected Status (TPS) holders who entered the country illegally are not eligible to become lawful permanent residents.
The justices noted that the Immigration and Nationality Act (INA) provides that eligibility for resident status generally requires “admission” into the country, defined as “the lawful entry of the alien into the United States after inspection and authorization of an immigration officer.
Therefore, they determined that the TPS “does not eliminate the effect of that illegal entry” (in those cases where the holder of the benefit entered the United States without authorization).
Gálvez said that the government, by annulling the ZRZC Matter- “the government combats the damage caused by the highest court of justice. Now US spouses and parents of spouses and children of legal age will be able to adjust their status once they travel outside the country with permission, return and are admitted
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TPS was created by Congress in 1990, it is available to qualified aliens present in the United States who are nationals of a foreign state or individuals.
nationals who last habitually resided there and whose country was designated for TPS by the Secretary of Homeland Security (formerly by the Attorney General).
USCIS explains that TPS designations are discretionary, but the secretary must first “find that the conditions in the country meet the legal criteria, including that the designation is based on an ongoing armed conflict, an environmental disaster, or extraordinary and temporary conditions.” .
The regulation indicates that non-citizens who meet the legal criteria can receive TPS regardless of their immigration status, including during the deportation process or after the deportation has been ordered, and regardless of their form of entry.
While TPS lasts, beneficiaries are protected from deportation by DHS and are authorized to work in the United States for the duration of the deportation protection. They are also eligible to travel abroad with prior authorization from DHS through USCIS.