SCOTUS VICTORY: Temporary Protected Status Does Not Make an Illegal Alien Eligible for a Green Card

FAIR Take | June 2021

On Monday, the U.S. Supreme Court issued a unanimous opinion in Sanchez v. Mayorkas. The Court held that a grant of Temporary Protected Status (TPS) does not count an as “lawful admission” for the purpose of establishing eligibility for a green card. This decision affirms Congress’s intent that TPS is a temporary status. TPS does not provide a pathway to citizenship or otherwise provide an immigration benefit after an alien’s TPS status expires.

The petitioner in this case, Jose Santos Sanchez, is a Salvadoran national who entered the United States illegally in 1997 and thereafter worked without employment authorization. He obtained TPS in 2001 after El Salvador was designated for TPS following a series of earthquakes. In 2014, Sanchez applied for adjustment of status to become a lawful permanent resident, or what is commonly referred to as receiving a “green card.”

Section 245a of the Immigration and Nationality Act (INA) governs adjustment of status, and requires that an alien be “inspected and lawfully admitted or paroled” in order to be eligible to adjust status to lawful permanent resident. Aliens who enter the United States without inspection (EWI) or illegally cross the border are ineligible to become permanent residents. The Court ruled that a grant of TPS alone does not constitute a “lawful admission,” for the purpose of satisfying this requirement. Associate Justice Kagan, who wrote for the Court, explained thath “[t]he TPS program gives foreign nationals nonimmigrant status, but it does not admit them. So the conferral of TPS does not make an unlawful entrant (like Sanchez) eligible under [section 245 of the INA] for adjustment to LPR status.”

This decision will prevent illegal aliens who entered the United States illegally and subsequently were granted TPS from receiving green cards without first departing the United States. An alien in this situation would likely be also subject to the three- and ten-year bars to admission as a result of their unlawful presence in the United States.

TPS is a humanitarian status that allows beneficiaries to remain and work in the United States if the Department of Homeland Security (DHS) has determined that conditions in their home country prevent a national’s safe return. The Immigration and Nationality Act (INA) only provides the DHS Secretary authority to designate countries TPS for the following temporary conditions: 1) Ongoing armed conflict (such as civil war); 2) An environmental disaster (such as earthquake or hurricane), or an epidemic; or 3) Other “extraordinary and temporary conditions”. The INA also provides the Secretary the authority to extend a TPS designation for up to 18 months for any country where conditions have not sufficiently improved. Despite the statutory requirement that TPS status be terminated upon resolution of the conditions or events that spurred a country’s designation, TPS for El Salvador is still in effect two decades later.