Supreme Court to Decide If TPS Recipients Are Eligible to Adjust Status

The Supreme Court will decide if a grant of Temporary Protected Status (TPS) satisfies the requirements of “inspection and admission” for purposes of adjustment of status. A favorable Court decision could allow TPS recipients to adjust status even if they entered without inspection and had never been paroled.

This case should help resolve a longstanding federal circuit split on the issue. Currently, the Sixth, Eighth, and Ninth Circuit Courts of Appeals have held that it does satisfy the requirement. In contrast, the Third and Eleventh Circuits have held that it does not. USCIS and immigration courts outside of the Sixth and Ninth Circuits have held it does not satisfy the requirements. In a recent article, former Immigration Judge Paul Schmidt called the circuit split “contrived” as the plain language law seems clear that TPS recipients should be able to adjust status.

While in the eyes of immigration advocates the plain language of the law appears to be on the side of the petitioners, victory is not guaranteed. With the recent passing of Justice Ginsberg and confirmation of Justice Barrett, conservative justices outnumber their liberal colleagues 6-3. Chief Justice Roberts, a Bush appointee, who ruled in favor of preserving DACA, and Justice Gorsuch, a Trump appointee who has issued pro-immigrant decisions in his tenure, will likely cast the deciding votes in the case. Accordingly, the case poses a great risk to TPS beneficiaries living in districts that already permit them to adjust status, as it could eliminate their pathway to permanent residence. Some advocates fear that even if the Court rules in favor of the petitioners, future presidents may be less inclined to make TPS designations, as it will allow open a pathway to permanent residence rather than just a temporary humanitarian benefit.

Given that President Biden has advocated for an immigration reform bill that, among other things, would provide a direct pathway for TPS recipients to adjust status without even needing a visa petition, this case could be moot by the time it is decided. That being said, legislative immigration reform appears to be extremely challenging, given that the Democrats have the slimmest majority in the Senate and the more conservative members of their party, such as West Virginia Senator Joe Manchin, are not inclined to support such actions at this time.