In order to qualify to adjust status from within the United States (i.e. apply for a green card), you have to have been “inspected and admitted or paroled.” In other words, a person who entered without a visa or other documentation must generally return to his or her home country to apply for an immigrant visa there rather than filing for a green card from within the United States. This requirement serves to trap many longtime recipients of Temporary Protected Status (“TPS”) in TPS even though they have relatives who could petition for them.
Wilson Law Group attorneys David Wilson and Anne Carlson filed a lawsuit to change that. Earlier this year, a federal judge ruled that a person granted TPS meets the “inspected and admitted” requirement to adjust status in Bonilla v. Johnson, 149 F.Supp.3d 1135 (D. Minn. 2016). Here is one of our favorite excerpts from the decision:
Here, it is undisputed that Plaintiff entered this country approximately twenty-five years ago, met all the criteria to receive TPS, is of good moral character, and has continued to timely renew her TPS. She also has an independent basis to adjust her status, namely through the immediate relative petition filed by her daughter. Requiring Plaintiff to return to El Salvador, a country that the Department of Homeland Security (“DHS”) has declared since 2001 carries Temporary Protected Status because of substantial “disruption of living conditions” based on “an environmental disaster within that country, specifically the devastation resulting from a series of earthquakes,” tropical storms, a volcanic eruption, and drought, for the sole purpose of returning to this country to gain “admission” would not only be meaningless, but heartless as well.
So what does the Bonilla decision mean for individuals with TPS? It means that if you have an employer or a relative that can petition for you, you may be eligible to apply for a green card even if your initial entry into the United States was unlawful (i.e. without inspection). It is important to note that TPS, without an underlying employer or relative petition, does not offer a pathway to residency. For additional information about how the Bonilla may apply or a free consultation, please contact Wilson Law Group!