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

[TM92 527]

On 6/9/2018 at 7:32 AM, speedster said:

@TM92 So are you gonna receive a TPS and AOS EAD? Or USCIS would automatically know which to give?

Yes, USCIS will send me both an AOS EAD/AP and a TPS EAD, but at separate times.

22 hours ago, speedster said:

I just read this which I find pretty interesting related to this topic.

http://blog.cyrusmehta.com/2018/01/potential-adjustment-of-status-options-after-the-termination-of-tps.html

&

http://blog.cyrusmehta.com/2018/01/what-comes-next-potential-relief-options-after-the-termination-of-tps.html

Thanks for sharing

Edited June 21, 2018 by TM92
2 responses

[TM92 527]

On 6/16/2018 at 8:54 PM, ACAZ said:

Hi, I’m in he same situation. My husband is USC. My pd is 6/2017, so far I’ve gotten 2 RFEs for the same reason.

I'm assuming you have responded to the RFEs with copies of the Ramirez v. Brown decision (you reside in Arizona?) if they are requesting evidence of lawful admission. If this is the case, I would recommend to do a consultation with an immigration lawyer if you haven't done so already.

[TM92 527]

On 5/7/2018 at 8:02 PM, TM92 said:

Based on VJ's EAD estimates (as of today): May 31, 2018 to June 18, 2018 for the AOS EAD

AOS EAD/AP was approved on 06/05/2018 and received on 06/13/2018.

[speedster 21]

4 hours ago, TM92 said:

AOS EAD/AP was approved on 06/05/2018 and received on 06/13/2018.

That's amazing!

It seems like with crossing fingers this works, even though I'm not in either 6 or 9 Cir. worth a shot to try this if my wifes not able to get Emergency AP.

Edited June 21, 2018 by speedster

[TM92 527]

22 minutes ago, speedster said:

That's amazing!

It seems like with crossing fingers this works, even though I'm not in either 6 or 9 Cir. worth a shot to try this if my wifes not able to get Emergency AP.

Since you reside in the 3rd Circuit this approach might not be the best as per the link you recently shared (http://blog.cyrusmehta.com/2018/01/potential-adjustment-of-status-options-after-the-termination-of-tps.html):

Quote

As David pointed out in his blog, those who reside outside those two Circuits, except in the Eleventh Circuit, might still be able to pursue adjustment of status on the same theory if they are willing to litigate in federal court following any denials. An applicant can litigate by bringing an action under the Administrative Procedure Act, 5 U.S.C. 701 in federal district court.

If your wife is not able to get emergency AP, she can still apply for regular AP based on TPS. Once you have an approved AP in hand she can travel to see her family. When she returns to the US with AP she will be able to apply for AOS (and a free AOS EAD/AP if she wants).

[speedster 21]

6 hours ago, TM92 said:

Since you reside in the 3rd Circuit this approach might not be the best as per the link you recently shared (http://blog.cyrusmehta.com/2018/01/potential-adjustment-of-status-options-after-the-termination-of-tps.html):

If your wife is not able to get emergency AP, she can still apply for regular AP based on TPS. Once you have an approved AP in hand she can travel to see her family. When she returns to the US with AP she will be able to apply for AOS (and a free AOS EAD/AP if she wants).

 

Well the link from what I read is that if you and your lawyer have the guts to push this it's a why not situation but in case that would have to be a last resort....and getting a request for AP at this time she wouldn't get it in time since her TPS terminates start of 2019

[TM92 527]

21 minutes ago, speedster said:

Well the link from what I read is that if you and your lawyer have the guts to push this it's a why not situation but in case that would have to be a last resort....and getting a request for AP at this time she wouldn't get it in time since her TPS terminates start of 2019

My line of thinking is that your wife can apply now for either emergency AP (at your USCIS field office) or regular AP since her TPS is still valid because of the pending TPS renewal. But I'm not able to find a strong source that says this (I could only find this Avvo question: https://www.avvo.com/legal-answers/i-am-in-tps--i-have-applied-for-tps-renewal--can-i-2824248.html).

[TM92 527]

14 minutes ago, TM92 said:

But I'm not able to find a strong source that says this

Just found this resource: https://cliniclegal.org/resources/re-registering-tps-and-applying-renewed-employment-authorization

Quote

TPS holders who want to travel outside the United States must first apply for advance parole travel authorization using Form I-131. It may be filed together with the I-821 or separately based on a pending or approved I-821.

 

[speedster 21]

11 hours ago, TM92 said:

Just found this resource: https://cliniclegal.org/resources/re-registering-tps-and-applying-renewed-employment-authorization

 

Hmm interesting, yeah I just know our lawyer wants to wait for her EAD to actually come in first and get Emergency AP as he's not trusting the timeframe for a regular AP to come in with enough time. But again it's worth a shot to try to get AP either way

[Poly 2]

I am a TPS  holder married to a USC .I am planning on filing everything myself, like you did. I just move to TN in order to qualify for the 6th circuit . Do you know if I have to include proof of residency on my initial request? or I have to show it at the interview?  Thank you so much for share your experience it did help a lot.

[TM92 527]

On 7/20/2018 at 6:00 PM, Poly said:

I am a TPS  holder married to a USC .I am planning on filing everything myself, like you did. I just move to TN in order to qualify for the 6th circuit . Do you know if I have to include proof of residency on my initial request? or I have to show it at the interview?  Thank you so much for share your experience it did help a lot.

If the proof of residency is a Tennessee driver license (or state ID) I recommend including a copy with the I-485 cover letter. Otherwise include something like the following in the I-485 cover letter:

Quote

Inspection and Admission: I entered the U.S. illegally without inspection but I later applied and was granted Temporary Protected Status (TPS) for [Country]. For TPS recipients residing in the 6^th Circuit there is an important footnote, Footnote 56, in the USCIS Policy Manual - Volume 7, Part B, Chapter 2, Section A, Subsection 5: "The 6^th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under INA 245 even if a foreign national granted TPS status entered the United States without inspection. See Flores v. USCIS, 718 F.3d 548 (6^th Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee." Therefore, I can adjust status as a resident of the state of Tennessee which is under the jurisdiction of the 6^th Circuit. I have included copies of the relevant sections of the USCIS Policy Manual - Volume 7, Part B, Chapter 2, Section A and a copy of the 6^th Circuit Flores v. USCIS opinion. I have also included a copy of my [Proof of Tennessee Residency] as proof of my residency in the 6^th Circuit.

USCIS Policy Manual - Volume 7, Part B, Chapter 2, Section A, Subsection 5 link

Edited July 22, 2018 by TM92
link

[Poly 2]

Thank you so much, for your advice. I really appreciate it. I will consider it.

[speedster 21]

Doing some digging and I found this about the 3rd Circuit:

http://immigrationimpact.com/2014/11/06/third-federal-court-rejects-government-interpretation-admission-u-s/

 

Possibly some good news for those in the 3rd Circuit?

[TM92 527]

5 hours ago, speedster said:

Possibly some good news for those in the 3rd Circuit?

That decision was at the district level, not circuit level. Maybe @Hypnos can provide some further input:

On 12/16/2017 at 11:29 AM, Hypnos said:

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.

Two district courts followed Flores:

• Eastern District of Pennsylvania: Medina v. Beers, 65 F.Supp.3d 419 (E.D. Pa. 2014)
• District of Minnesota: Bonilla v. Johnson, 149 F.Supp.3d 1135 (D. Minn. 2016)

As of September 16, 2017, DHS has failed to pursue appeals in these cases: https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/court_decisions_ensure_tps_holders_in_sixth_and_ninth_circuits_may_become_permanent_residents.pdf. But the PDF also mentions: "USCIS has not adopted—and thus is not following—either Ramirez or Flores outside of the Sixth and Ninth Circuits."

[speedster 21]

2 hours ago, TM92 said:

That decision was at the district level, not circuit level. Maybe @Hypnos can provide some further input:

Two district courts followed Flores:

• Eastern District of Pennsylvania: Medina v. Beers, 65 F.Supp.3d 419 (E.D. Pa. 2014)
• District of Minnesota: Bonilla v. Johnson, 149 F.Supp.3d 1135 (D. Minn. 2016)

As of September 16, 2017, DHS has failed to pursue appeals in these cases: https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/court_decisions_ensure_tps_holders_in_sixth_and_ninth_circuits_may_become_permanent_residents.pdf. But the PDF also mentions: "USCIS has not adopted—and thus is not following—either Ramirez or Flores outside of the Sixth and Ninth Circuits."

Ahh interested so the Eastern District PA court can't apply to the circuit that it's under? Didn't know that.

 

But now the question is doesn't the USCIS have to follow what the federal court has ruled? Especially if they let it settle in the district court?