TPS Beneficiaries That Entered Illegally May Adjust Status If They Reside in the 6th Cir. or 9th Cir.

[TM92 527]

I'm sharing my personal AOS experience of trying this approach (without a lawyer). If you see my timeline, I'm in the very early stages of the AOS process. I'll provide future updates of my AOS progress.

 

As you can read for yourself in this recent cheat sheet for immigration lawyers, two different circuit courts have found that when USCIS grants TPS it counts as an “admission” for purposes of AOS. The two cases are Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013) and Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017). But you can only use this approach if you reside in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (state)). Regular AOS applicants usually submit a copy of their I-94 as proof of admission, but I provided a copy of the 20 page Ramirez v. Brown decision (because I reside in the Ninth Circuit).

 

I concurrently filed the I-130 (by my USC 21 year old son), AOS, EAD, and AP. I'll post as replies below my cover letters for each application (without personal info). Feel free to ask any questions if you are in the same situation.

[TM92 527]

[Street Number and Name]

[City, State ZIP]

 

[Month Day, Year]

 

 

 

 

USCIS

P.O. Box 805887

Chicago, IL 60680-4120

 

 

RE: I-130, Petition for Alien Relative

Applicant: [Applicant's Full Name]

A-Number: [A-Number]

 

 

To Whom It May Concern:

 

The applicant is filing an Adjustment of Status (I-485) application concurrently with my Petition for Alien Relative (I-130).

 

I am enclosing the following documents in support of my Petition for Alien Relative:

 

1. Form I-130, Petition for Alien Relative

2. Form G-1145, E-Notification of Application/Petition Acceptance

3. Filing fee of $535 in the form of a personal check payable to U.S. Department of Homeland Security

4. Copy of my birth certificate showing birth in the U.S. My birth certificate already reflects and references my court ordered name change from [Year]

5. Copy of applicant and my mother’s marriage certificate, showing that their marriage occurred when I was under the age of 18

 

I am requesting that your office promptly approve my Petition for Alien Relative. If you have any questions or concerns, please call me at (000) 000-0000. Thank you for the time taken in this case.

 

Sincerely,

[Petitioner's Full Name]

[TM92 527]

[Street Number and Name]

[City, State ZIP]

 

[Month Day, Year]

 

USCIS

P.O. Box 805887

Chicago, IL 60680-4120

 

RE: I-485, Application to Adjust Status

Applicant: [Applicant's Full Name]

A-Number: [A-Number]

 

To Whom It May Concern:

 

My Petitioner is filing his Petition for Alien Relative (I-130) concurrently with this Adjustment of Status (I-485) application. I’m also filing my Employment Authorization (I-765) and Advance Parole Document (I-131) applications concurrently with this I-485 request.

 

I am enclosing the following documents in support of my application for Adjustment of Status:

 

1. Form I-485, Application to Adjust Status

2. Form G-1145, E-Notification of Application/Petition Acceptance

3. Filing and biometric services fees of $1225 in the form of a personal check payable to U.S. Department of Homeland Security

4. Copy of my birth certificate, translation, and certificate of translation

5. Copy of my current [State] Driver’s License

6. Inspection and Admission: I entered the U.S. illegally without inspection but I later applied and was granted Temporary Protected Status (TPS) for [Country]. Earlier this year in Ramirez v. Brown, No. 14-35633, __ F.3d __ (9^th Cir. 2017), the 9^th Circuit affirmed that under the TPS statute, 8 U.S.C. section 1254a(f)(4), a TPS recipient is deemed to be in lawful status and thereby has satisfied the requirements to become a nonimmigrant, including inspection and admission, for the purposes of adjustment of status. Therefore, I can adjust status as a resident of the state of [State] which is under the jurisdiction of the 9^th Circuit. I have included a copy of the 9^th Circuit Ramirez v. Brown opinion.

7. Sealed Form I-693, Report of Medical Examination and Vaccination Record

8. Proof of Relationship: Copy of petitioner’s birth certificate. Petitioner’s birth certificate already reflects and references his court ordered name change from [Year]. Copy of applicant and petitioner’s mother’s marriage certificate, showing that the marriage occurred when petitioner was under the age of 18.

9. Two identical passport-style color photographs

10. Form I-864W, Intending Immigrant’s Affidavit of Support Exemption, along with my SSA earnings statement showing that I have earned over 40 credits

 

I am requesting that your office promptly approve my request for Adjustment of Status. If you have any questions or concerns, please call me at (000) 000-0000. Thank you for the time taken in this case.

 

Sincerely,

[Applicant's Full Name]

[TM92 527]

[Street Number and Name]

[City, State ZIP]

 

[Month Day, Year]

 

 

 

 

USCIS

P.O. Box 805887

Chicago, IL 60680-4120

 

 

RE: I-765, Application for Employment Authorization

Applicant: [Applicant's Full Name]

A-Number: [A-Number]

 

 

To Whom It May Concern:

 

I’m filing my Adjustment of Status (I-485) and Advance Parole Document (I-131) applications concurrently with this request for an Employment Authorization Document (I-765). I’m filing the I-485 after July 29, 2007, and paying a one-time filing fee. Therefore, as an Adjustment of Status applicant, I am not required to pay additional USCIS fees for this I-765 request.

 

I am enclosing the following documents in support of my application for Employment Authorization:

 

1. Form I-765, Application for Employment Authorization

2. Form G-1145, E-Notification of Application/Petition Acceptance

3. Copy of my current Employment Authorization Document (Front and back)

4. Two identical passport-style color photographs

5. Copy of I-797, Notice of Action, approval notice of current I-765

 

I am requesting that your office promptly approve my request for an Employment Authorization Document. If you have any questions or concerns, please call me at (000) 000-0000. Thank you for the time taken in this case.

 

Sincerely,

[Applicant's Full Name]

 

[TM92 527]

[Street Number and Name]

[City, State ZIP]

 

[Month Day, Year]

 

 

 

 

USCIS

P.O. Box 805887

Chicago, IL 60680-4120

 

 

RE: I-131, Application for Travel Document

Applicant: [Applicant's Full Name]

A-Number: [A-Number]

 

 

To Whom It May Concern:

 

I’m filing my Adjustment of Status (I-485) and Employment Authorization (I-765) applications concurrently with this request for an Advance Parole Document (I-131). I’m filing the I-485 after July 29, 2007, and paying a one-time filing fee. Therefore, as an Adjustment of Status applicant, I am not required to pay additional USCIS fees for this I-131 request.

 

I am enclosing the following documents in support of my application for Advance Parole:

 

1. Form I-131, Application for Travel Document

2. Form G-1145, E-Notification of Application/Petition Acceptance

3. Copy of my current Employment Authorization Document (Front and back)

4. Two identical passport-style color photographs

5. Copy of I-797, Notice of Action, approval notice of current I-765

 

I am requesting that your office promptly approve my request for an Advance Parole Document. If you have any questions or concerns, please call me at

(000) 000-0000. Thank you for the time taken in this case.

 

Sincerely,

[Applicant's Full Name]

[TM92 527]

Filing Tip for I-765:

 

Even if you already have an EAD based on TPS, make sure to select "Initial application" on Form I-765. I realized my mistake yesterday.  

[Crazy Cat 39,182]

I would be very careful using this approach. First, these rulings can be overturned.  In fact, the 9th Circuit Court is very frequently overturned.  Secondly, are you stating that federal law is applied differently to those people outside the 2 districts you named?

I give you an A for effort....

[Hypnos 6,576]

1 hour ago, missileman said:

are you stating that federal law is applied differently to those people outside the 2 districts you named?

Yes. This is how appellate circuit courts work at the federal level. 

 

There are certain immigration benefits (usually extremely nuanced) that may only be available in some circuits and not others. 

 

It would likely take intervention by the US Supreme Court to make certain decisions apply nationwide. 

[Crazy Cat 39,182]

6 minutes ago, Hypnos said:

Yes. This is how appellate circuit courts work at the federal level. 

interesting...i didn't know that.....

[TM92 527]

1 hour ago, missileman said:

are you stating that federal law is applied differently to those people outside the 2 districts you named?

If we go back to 2011, in Serrano v. United States Attorney General, 655 F.3d 1260 (11th Cir. 2011), the Eleventh Circuit (Alabama, Florida, and Georgia) held that a grant of TPS was not an "admission" for purposes of AOS. Given this circuit split, the Justice Department could seek Supreme Court review of the Ninth Circuit's decision (but they haven't done so).

 

And for those that reside outside the Sixth, Ninth, and Eleventh if they try the approach USCIS will most likely deny the AOS. But then they can appeal to their local District Court. Then the losing parties would most likely appeal the decision at the appropriate Circuit Court. But all this takes time, and strong legal help (so not a DIY process).

Edited December 16, 2017 by TM92

[geowrian 22,335]

37 minutes ago, Hypnos said:

It would likely take intervention by the US Supreme Court to make certain decisions apply nationwide. 

Technically, one federal court ruling could explicitly make it apply nationally (like the travel bans). But that really pushes it upstream for SCOTUS to look at...especially when there are conflicting rulings in the lower courts (like with this).

 

5 minutes ago, TM92 said:

But all this takes time.

And money.

[Ontarkie 13,902]

~~Moved to General Immigration from Bringing FAmily of USC to America~~

[TM92 527]

On 12/15/2017 at 10:12 PM, TM92 said:

I'll provide future updates of my AOS progress.

Here's an update:

 

I received an AOS RFE today. The RFE listed 2 items: evidence of lawful admission or parole into the US and SSA earnings statement showing 40 quarters of work history. I resent a copy of the 9th Circuit Ramirez v. Brown opinion and a copy of my SSA earnings statement. I also sent a cover letter that was pretty much a copy-paste of the AOS cover letter above (posted below as a reply).

Edited January 13, 2018 by TM92

[TM92 527]

[Street Number and Name]

[City, State ZIP]

 

[Month Day, Year]

 

U.S. Department of Homeland Security

U.S. Citizenship and Immigration Services

National Benefits Center

P.O. Box 648004

Lee’s Summit, MO 64002

 

RE: Request for Initial Evidence (I-485)

Applicant: [Applicant's Full Name]

A-Number: [A-Number]

Receipt: [Receipt Number]

 

Robert M. Cowan, Director, USCIS National Benefits Center:

 

Inspection and Admission: I entered the U.S. illegally without inspection but I later applied and was granted Temporary Protected Status (TPS) for [Country]. Last year in Ramirez v. Brown, No. 14-35633, __ F.3d __ (9^th Cir. 2017), the 9^th Circuit affirmed that under the TPS statute, 8 U.S.C. section 1254a(f)(4), a TPS recipient is deemed to be in lawful status and thereby has satisfied the requirements to become a nonimmigrant, including inspection and admission, for the purposes of adjustment of status. Therefore, I can adjust status as a resident of the state of [State] which is under the jurisdiction of the 9^th Circuit. I have included a copy of the 9^th Circuit Ramirez v. Brown opinion. Below is a front and back copy of my current Employment Authorization Card under category A12 (Temporary Protected Status granted).

[Front of Employment Authorization Card] [Back of Employment Authorization Card] 

 

Affidavit of Support Exemption: I have included a copy of my SSA earnings statement showing that I have earned over 40 credits.

 

I am requesting that your office promptly approve my request for Adjustment of Status. If you have any questions or concerns, please call me at (000) 000-0000. Thank you for the time taken in this case.

 

Sincerely,

[Applicant's Full Name]

[Crazy Cat 39,182]

10 hours ago, TM92 said:

Here's an update:

 

I received an AOS RFE today. The RFE listed 2 items: evidence of lawful admission or parole into the US and SSA earnings statement showing 40 quarters of work history. I resent a copy of the 9th Circuit Ramirez v. Brown opinion and a copy of my SSA earnings statement. I also sent a cover letter that was pretty much a copy-paste of the AOS cover letter above (posted below as a reply).

Do you still think this is a DIY. Case?  Even if you successfully did AOS based on that 9th circuit court case, what happens if the SCOTUS reverses it? You could find your AOS revoked, couldn't you?