US Citizenship and Immigration Services (USCIS) is amending its Policy Manual to cover the correct method for permitting travel by TPS beneficiaries, as well as how such travel may affect their eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act (INA). The USCIS Policy Manual is also being updated to reflect the ruling of the United States Supreme Court in Sanchez v. Mayorkas, 141 S.Ct. 1809. (2021).
A noncitizen must have been examined and admitted or inspected and paroled into the United States to be eligible for adjustment of status under INA 245(a), unless excluded from this criterion. On June 7, 2021, the United States Supreme Court maintained the view that a noncitizen who enters the United States without being examined and admitted or inspected and paroled, and then receives TPS, does not typically fulfill this condition.
USCIS is also revising the impact of TPS beneficiary approved travel on eligibility for adjustment of status under INA 245. (a). On August 20, 2020, USCIS approved the Administrative Appeals Office’s ruling in Matter of Z-R-Z-C- as agency policy. Matter of Z-R-Z-C- held that treating TPS beneficiaries who were paroled upon returning from authorized travel under INA 244(f)(3) as parolees for purposes of eligibility for adjustment of status under INA 245(a) was contrary to the language of the statute, and that noncitizens should not be considered paroled, despite the issuance and use of parole documents for reentry into the United States. The adoption of this stance as the agency’s policy position fundamentally altered the agency’s view on the impact of TPS beneficiaries’ allowed travel and return to the United States. Matter of Z-R-ZC- also concluded that being “examined and admitted” following TPS-authorized travel does not constitute being inspected and admitted for purposes of INA 245 adjustment of status (a)
USCIS withdrew its designation of Matter of Z-R-Z-C- as an approved decision on July 1, 2022, after reviewing its interpretation of the relevant statutory authorities and the implications of TPS authorized travel on eligibility for adjustment of status.
With limited limitations, USCIS is amending its guidelines to clarify that TPS beneficiaries who go overseas temporarily with the prior agreement of the US Department of Homeland Security (DHS) and return in compliance with that previous authorisation may be examined and allowed into TPS upon return. TPS beneficiaries who have been inspected and admitted into TPS following such approved travel are considered “inspected and admitted” for purposes of adjustment of status under INA 245(a) and INA 245(b) (k). This is true even if the TPS claimant was present without admittance or parole when TPS was first issued.
In addition, the USCIS is amending its instructions on how it enables TPS recipients to travel under the Miscellaneous and Technical Immigration and Nationality Amendments of 1991. (MTINA). For this demographic, USCIS is establishing a new form, TPS Travel Authorization (Form I-512T), and will no longer use Authorization for Parole of an Alien Into the United States (Form I512L). Presenting a valid Form I-512T at a port-of-entry permits a US Customs and Border Protection (CBP) officer to enter the identified bearer into TPS.
In addition, USCIS is deleting guidance and reserving the applicable Policy Manual section on the effect of TPS and TPS-authorized travel on whether a naturalization applicant was lawfully admitted for permanent residence, as required by INA 318. The withdrawn guideline did not reflect the 2021 Supreme Court judgment that TPS conferral was not an admission, and it applied the policy repealed in Matter of Z-R-Z-C- to TPS recipients who returned from approved travel. Following that, guidance reflecting these modifications will be released.
USCIS is also amending its advice on when adjustment of status applications fall under the authority of USCIS rather than the Executive Office for Immigration Review (EOIR). The amendment further explains that jurisdiction is determined by whether DHS enters a noncitizen into removal proceedings as a “arriving alien.”
This guideline, included in Volume 7 of the Policy Manual, is applicable immediately and will apply prospectively to applications decided on or after July 1, 2022. The guidance in Part B, Chapter 2, Section A, Subsection 5, Temporary Protected Status, also applies retroactively to past travel in all cases arising under the jurisdiction of the United States Court of Appeals for the Fifth Circuit under the recent decision Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022), as well as in individual cases arising under the jurisdiction of the United States Court of Appeals for the Fourth Circuit.
