8th Circuit Eases TPS Beneficiaries’ Eligibility for Adjustment of Status

CHANGE IN THE LAW: U.S. Supreme Court Case Changes the Law in the 8th Circuit

On 7 June 2021, the U.S. Supreme Court issued its decision in Sanchez v. Mayorkas, Case No. 20-315. This decision resolved conflicting case law among the federal appellate courts. Before the Supreme Court’s Sanchez decision, the blog section below discussed Velasquez v. Barr, Case No. 19-1148 & 19-2130 (8th Cir. 2020), an eighth circuit decision authorizing TPS beneficiaries, who entered the U.S. without inspection or parole, to apply for permanent residency by adjusting status (I-485 Form).  The Supreme Court’s June 2021 Sanchez decision changes the law regarding a TPS beneficiary’s eligibility for adjustment when she or he entered without admission and inspection or parole. Considering the Sanchez decision, the eighth circuit’s Velasquez decision no longer controls a TPS beneficiary’s eligibility for adjustment when the Department of Homeland Security did not inspect and admit or parole the beneficiary before she or he obtained TPS status. For additional information, see the updated blog.

8th Circuit Eases TPS Beneficiaries’ Eligibility for Adjustment of Status

On 27 October 2020, the United States Court of Appeals for the Eighth Circuit issued an important decision impacting foreign nationals granted temporary protected status (“TPS beneficiaries”). The eight circuit’s decision in Velasquez v. Barr, Case Nos. 19-1148 & 19-2130 (8th Cir. Oct. 27, 2020), positively changes a TPS beneficiary’s eligibility to pursue permanent residency through adjustment of status; this change in the law is limited to TPS recipients living in states governed by the eighth circuit.

In Velasquez, the foreign nationals received temporary protected status and applied for adjustment of status (permanent residency) as immediate relatives of U.S. citizens. USCIS denied the TPS beneficiaries’ adjustment applications (I-485 Forms) upon reasoning that temporary protected status did not qualify as an admission for adjustment purposes under 8 U.S.C. § 1255(a). After USCIS denied the adjustment applications, the TPS beneficiaries filed federal lawsuits under the Administrative Procedure Act. The federal trial courts concluded that temporary protected status functioned as an inspection and admission for section 1255(a) adjustment purposes. See Velasquez, Case Nos. 19-1148 & 19-2130 at *4-5.

On appeal, the eight circuit considered the following as an issue of first impression: whether TPS beneficiaries “who entered the United States without inspection are nevertheless deemed ‘inspected and admitted’ and thus eligible for adjustment.” Id. at *5. The eighth circuit considered that the Temporary Protected Status statute, 8 U.S.C. § 1254a(f)(4), requires that “TPS beneficiaries ‘shall be considered as being in, and maintaining, lawful status as a nonimmigrant’” for section 1255 adjustment purposes. Id. at *7 (emphasis removed). The eighth circuit then concluded that section 1254a(f)(4) requires that TPS beneficiaries “be considered ‘inspected and admitted’ for purposes of adjusting their status under” section 1255. Id. The eighth circuit’s Velasquez decision positively impacts TPS Beneficiaries living in Arkansas, Iowa, Missouri, Minnesota, Nebraska, North Dakota, and South Dakota. Because the eighth circuit now considers TPS beneficiaries, who entered the U.S. without inspection, as admitted and inspected, TPS beneficiaries living in these states may now pursue permanent residency by filing adjustment applications (I-485 and other forms). SeeVelasquez, Case Nos. 19-1148 & 19-2130 at *8 (“because TPS beneficiaries are ‘considered’ to have nonimmigrant status for purposes of § 1255, they must also be considered ‘inspected and admitted’ under § 1255(a)”). The eighth circuit’s Velasquez decision aligns with precedential decisions from the sixth and ninth circuits. See Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. U.S. Citizenship and Immigration Services, 718 F.3d 548 (6th Cir. 2013).