Law360 (August 31, 2020, 7:03 PM EDT) — Individuals living in the U.S. with temporary immigration protections will now face a tougher path to legal status under a new policy that bars immigrants from becoming eligible for permanent residency by traveling abroad and returning.
U.S. Citizenship and Immigration Services published a policy memo Monday stating that an individual with Temporary Protected Status, a program that gives deportation protection and work permits to individuals from certain countries in crisis, who travels abroad with permission “resumes the same immigration status the alien had at the time of departure” upon return.
This interpretation will bar most TPS holders, many of whom have lived in the U.S. for more than a decade, from becoming U.S. permanent residents through their adult American children if they initially entered the U.S. illegally.
It will also present hurdles to TPS holders married to U.S. citizens who wish to sponsor them, by now foreclosing the option to travel abroad and requiring those immigrants instead to show that a U.S. citizen spouse or parent would suffer extreme hardship without them.
The policy only applies to future green card applicants and will not affect anyone who previously became a permanent resident through the travel authorization process, the memo said.
Joseph Edlow, USCIS deputy director for policy, said in a statement Monday that “misinterpretation and inconsistent application” of federal immigration law has allowed TPS holders to previously become permanent residents through this process. This was “a mistaken distortion of what Congress intended when creating this temporary program,” he said.
“Temporary Protected Status is by its very nature temporary,” Edlow said. “It should not provide a path to lawful permanent resident status or citizenship.”
Immigrants who want to become legal permanent residents must have been legally admitted into the U.S. — in other words, immigrants cannot become permanent residents after crossing the border without authorization.
Previously, TPS holders who had entered the U.S. without inspection could request permission to travel abroad, a process called advance parole, and then return. Then, their most recent entry into the U.S. would be recorded, and they could become permanent residents if they had a relative to sponsor them.
However, under the memo, TPS holders who travel through advance parole will not be considered to have been “inspected and admitted or paroled” when they reenter the U.S.
Aaron Hall, an immigration attorney with Joseph & Hall PC who represents TPS holders, called USCIS’ interpretation “directly contrary” to the Immigration and Nationality Act.
“It’s definitely in line with this administration’s broad moves across every sector of immigration to try to eliminate paths towards green card status, to limit legal immigration,” Hall said. “But it is jarring, I would say, and surprising to see a decision that seems to go so directly against the very plain words of the statute.”
Monday’s policy memo marks the Trump administration’s latest attempt to curb TPS, which currently offers protections to individuals from 10 nations — El Salvador, Haiti, Honduras, Nepal, Nicaragua, Sudan, South Sudan, Syria, Somalia and Yemen — who were in the U.S. when the U.S. government designated the countries for TPS.
TPS does not give these individuals a path to legal status in the U.S., though many have lived in the country for decades. El Salvador, for instance, was designated for TPS in 2001 under then-President George W. Bush’s administration.
House Democrats have passed legislation that would provide a path to citizenship for this population, which includes more than 300,000 people, but that bill has stalled in the Republican-controlled Senate.
In December, USCIS issued a policy alert which stated that TPS holders with old outstanding deportation orders remain subject to those removal orders even if they travel abroad, barring them from gaining legal status once they return.
A group of TPS holders sued USCIS less than a week ago to challenge that December policy alert, claiming that the changes did not go through the proper regulatory process and that the immigration official who issued it was improperly appointed.
The administration is also currently fighting in court to rescind TPS for a number of countries. Lower court orders have kept the TPS program preserved while the cases progress, and the Ninth Circuit is poised to rule on one such court order any day.
–Editing by Abbie Sarfo.
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