Temporary Protected Status (“TPS”) has been available for citizens of El Salvador who have been physically present and residing in the United States since February 13, 2001. On January 8, 2018, the Secretary of the Department of Homeland Security (“DHS”) announced the termination of TPS for Salvadorians effective September 9, 2019. As identified below, there are several potential remedies that may be available to employees in TPS status (whether they are citizens of El Salvador or any other foreign country) to allow them to remain in the United States legally after their TPS ends on September 9, 2019. Analyzing the eligibility of an employee in TPS status, however, depends on a review of the foreign national’s entire immigration record, including but not limited to how the person entered the United States and whether the person has worked without authorization. Eligibility also varies depending on the applicable law of the jurisdiction in which the employee resides.
Employees with TPS May File for Permanent Residence Based on the Petition of a United States Citizen Immediate Relative
As a general rule, the immediate relative (defined as the spouse, child under the age of 21 and unmarried, or parent of citizens 21 years of age or older) of a U.S. citizen petitioner may not adjust his/her status to permanent residence if he or she has entered the United States illegally. Stated differently, only foreign nationals who have been legally “admitted” to the United States may become permanent residents through the adjustment of status process as a result of a United States citizen immediate relative petition.
Because many TPS holders have entered unlawfully, it might appear initially that these individuals would be ineligible to adjust status. However, the Ninth and Sixth Circuit Courts of Appeals have held that the receipt of TPS after an illegal entry constitutes an “admission” for purposes of adjustment of status (adjustment of status is one of two means of applying for permanent residence, whereby the individual’s status is adjusted within the United States). See Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). Since Arizona is located in the Ninth Circuit, for example, Ramirez applies to immigration petitions and applications filed by people living in Arizona. Ramirez and Flores are important because they allow certain “immediate relatives” who obtained TPS after entering the United States illegally to file for permanent residence based on family-sponsored petitions filed on their behalf by U.S. citizen petitioners.
Should an employer identify employees with TPS who have a United States citizen immediate relative, our Firm can assist the employees to become permanent residents.
The Employer May File Change of Status Petitions from TPS to H-1B for Affected Employees Eligible for H-1B status
The Ramirez court also concluded that foreign nationals granted TPS are deemed to be in lawful non-immigrant status. Because employees in TPS are deemed to be in status, and maintenance of status is a requirement to request a change of status, the employer may file H-1B petitions (or other employment-based, non-immigrant petitions) for eligible employees (e.g., teachers and other professionals) to change their status from TPS to H-1B. The filing window for H-1B petitions subject to the annual 85,000 limit has now passed, but USCIS is still accepting filings from petitioners who are exempt from the annual cap. If the employer’s is cap-exempt, it can file a petition at any time as long as the beneficiary is still in TPS status.
Should an employer identify employees with TPS who are eligible for a change of status from TPS to H-1B, our Firm can assist with the change of status cases.
The Employer May File Employment-Based Permanent Residence Cases on Behalf of Affected Employees
The employment-based permanent residence process is different from the United States immediate relative family-based process. Specifically, in addition to having been “admitted,” the beneficiary must not have been out of status (i.e., worked without authorization, overstayed a legal admission) for more than 180 days after admission. Under the holdings in Ramirez and Flores, individuals in TPS status whose TPS has never lapsed may satisfy this requirement.
However, timing may be an issue. An employment-based application for permanent residence must be supported by an approved labor certification application. It can take up to a year for the labor certification application to be certified. Only then can the employer file its I-140 petition and the employee file his/her application for permanent residence. Once the employee in TPS files his/her application for adjustment of status, s/he is permitted to remain in the United States until it is decided. Approximately 3-4 months after filing his/her application for permanent residence, the employee in TPS will receive an Employment Authorization Document (“EAD”) that will allow him/her to work while awaiting the adjudication of the permanent residence case.
As stated above, TPS for Salvadorians will terminate on September 9, 2019. Accordingly, should an employer decide to sponsor employees with TPS for employment-based permanent residence, it should commence the cases as soon as possible.
Should an employer identify employees with TPS to sponsor for employment-based permanent residence, our Firm can assist with those permanent residence cases.
About the Author: Ian Nesteruk is an Associate in Dickinson Wright’s Phoenix office where he practices in the areas of commercial litigation, family law and immigration. His immigration practice involves representing foreign nationals for employment-based and family-based non-immigrant and immigrant visas. He has experience in a range of non-immigrant classifications including H, TN, E, O and P. His permanent residence experience is primarily in the technology industry and includes outstanding researcher and extraordinary ability petitions, and national interest waivers. You may reach Ian at 602-889-5358 or INesteruk@dickinsonwright.com and you may visit his bio here.