By: Charles H. Kuck, Managing Partner, Kuck Baxter Immigration.
Now that we know TPS is ending for Hondurans and El Salvadorans, it is essential that correct information about options be available. Be very careful before choosing your path forward, and make sure you are talking to experienced immigration lawyers who understand both TPS and all of immigration law.
1. It is essential that TPS holders obtain a “legal” entry into the United States. Under TPS, a person is eligible for a travel document called an “advance parole.” USCIS currently seems to be asking people to produce evidence of an emergency reason to travel (sick or dying close relatives, or urgent business outside the US). But USCIS has granted advance parole to TPS holders for years for any reason. USCIS appears to have changed their policy because a legal entry allows TPS holders to “adjust status” to lawful residence, under certain circumstances. Apply for a travel document today, AND travel outside the US. Do NOT fear denial of reentry. So long as you have a valid TPS and have no criminal charges pending, you will be admitted.
2. TPS holders with a legal entry can “adjust status” in the United States through an “immediate relative,” a U.S. spouse or child (who is 21 or older). Many TPS holders have children within 4-5 years of 21, if not much closer or at that age. These TPS holders, even once TPS expires, will be able to obtain permanent residence in the United States through their children, so long as they have a legal entry, such as the one through advance parole. TPS holders who are married to US Citizens can also adjust status, if they have that legal entry. This is true anywhere in the United States.
3. TPS holders can also process for permanent residence through their employers, by a process called labor certification. That process takes at least a year, however, so plan accordingly. There are also issues of doing this in Georgia that you need to understand prior to undertaking the process, and it certainly requires that you have entered the US legally or traveled on an advance parole. In certain states, there is no need to travel beforehand and adjusting status is not a problem, in other states, doing so may be an issue, so you may need to move to another state to finish this “green card” process. Talk to an immigration lawyer who does “labor certifications” regularly, not someone who started doing it recently because they thought they could make money! This is a complicated process and processing times are long. You must complete the labor certification process before your TPS expires, so if you are planning on doing this, you need to do it now.
4. It is substantially unlikely that USCIS will put all TPS holders into deportation proceedings when TPS ends, as the immigration court system is simply incapable, right now, of handling that number of new cases. Most TPS holders, who do NOT already have a deportation order, have children born in the United States. Most TPS holders will, if they are put into deportation proceedings, be eligible to apply for “cancellation of removal” or as some people call it “the 10 year law.” The approval rate for these cases is low, but the processing times currently stretch into the years, and you will be able to get a work permit while the case is pending. This option ONLY applies if you are in deportation proceedings, something you do not necessarily want. Also, since your children are born in the U.S., if your case takes long enough, they will reach 21, and you will be able to get permanent residence, if you entered legally, or returned under and advance parole, even if you no longer have TPS.
5. If you already have an order of deportation, a new Supreme Court case, called Pereira, may help you in reopening your case. If you were not served with a “Notice to Appear” with a date for a hearing, there is an argument that the Notice was defective, and thus deprives the court of jurisdiction, and your case would then need to be reopened. This is a brand new decision, and that means the arguments have not yet been tested, however, in some locations around the United States, case have been reopened and some terminated on this basis. It is important to obtain a copy of your immigration file and meet with an experienced immigration attorney to determine if this new case can help you undo your deportation order, and provide you either a termination, or possibly an another avenue for relief under any of the other options above.
The most important thing to remember is to NOT trust your future to an unqualified immigration lawyer. There a lot of “new” lawyers out there willing to take your money, but who do not have the experience or the support to assist you properly. Do your homework, use the internet, and find an experienced immigration lawyer who can explain to you what can be done to assist you, or can honestly tell you that you have no options, so that you can make the appropriate plans.