Unanimous Supreme Court Decision Creates Major Setback for TPS Recipients Seeking Permanent Residence

On June 7, 2021, the Supreme Court unanimous held in Sanchez v. Mayorkas that a grant of Temporary Protected Status (TPS) does not qualify as being “admitted and inspected” for purposes of adjustment of status. Prior to this decision, federal circuit courts were split on the issue. Accordingly, many TPS recipients living in parts of the country who previously held that TPS was an admission and inspection may no longer be able to adjust status. TPS beneficiaries who were previously prohibited from adjusting status for their unlawful entry will continue to be ineligible for adjustment of status unless they qualify through other exceptions in the law.

The Supreme Court’s decision, written by Justice Kagan, based its reasoning on a technical reading of a federal statute, which indicates that TPS beneficiaries are in nonimmigrant status but omits the mention of admission. The textual decision did not address the reasoning of the three federal circuit courts that interpreted this statute differently, the inconsistent treatment of the petitioner, or the impact the decision would have on TPS recipients and their families.

In an important footnote in its decision, the Supreme Court reserved the issue of whether TPS beneficiaries who were “paroled” into the United States after receiving TPS benefits are eligible for adjustment of status. Federal law allows those who were paroled to seek adjustment of status. Many TPS beneficiaries, including those who initially entered without inspection, seek parole when needing to temporarily travel abroad for humanitarian reasons. The Trump Administration prohibited TPS beneficiaries who were paroled after August 20, 2020, from seeking adjustment of status. The rescission of a long-standing policy was challenged and is currently unresolved. The Biden Administration has yet to undo this policy, which appears to be contrary to what is required under federal law.

The decision was among the most significant immigration cases in the Supreme Court’s term, as there are approximately 400,000 TPS recipients from 12 countries living throughout the United States. TPS provides the right to live and work in the United States temporarily but does not offer a direct pathway to lawful permanent residence. TPS recipients must past a criminal background check and cannot be convicted of felony or more than one misdemeanor. TPS beneficiaries can be eligible to renew their benefits every 18 months, provided that DHS permits re-registration for the designated country. Hundreds of thousands of beneficiaries have lived in the United States for decades, own businesses, own homes, work in all sectors of the economy, and have U.S. citizen children. The Trump Administration attempted to end benefits for most TPS beneficiaries but was temporarily blocked by federal courts. Given the precarious nature of the benefits that could be eliminated with changing political tides, most TPS beneficiaries wish to permanently remain in the United States.

It is important to note that the Supreme Court decision will not affect TPS beneficiaries who were initially admitted and inspected or can qualify for an adjustment through “245(i),” or are seeking adjustment through a humanitarian benefit rather than a family or employment-based petition. However, the vast majority of TPS recipients do not qualify for these specific exceptions in law and will be negatively affected by the decision. The House of Representatives did pass legislation allowing for a pathway to permanent residence for TPS recipients, but it will likely fail in the Senate.