08 Oct TPS Adjustment of Status through Advance Parole
Question: Are Temporary Protected Status immigrants who entered the U.S. without inspection qualified to adjust status?
Answer: Yes. Originally, TPS are subject to unlawful presence bar. With the new development in the Matter of Arrabally, the Board of Immigration Appeals ruled that travel using advance parole will be considered as a lawful admission thereby solving the problem of entering without inspection. Since the entry using advance parole is a lawful admission any petition by a U.S. citizen spouse or son or daughter may be used to adjust status. This is also true if the petitioner is a lawful permanent resident or an employment based petition if the visa is already available under the Visa Bulletin.
Question: Who are qualified to apply for TPS?
Answer: Currently the citizens of the following countries are qualified to apply for TPS: El Salvador, Honduras, Haiti, Nicaragua, Somalia, Sudan and Syria. If you are a national of these countries and have a problem adjusting status due to unlawful entry, you may be qualified to adjust status using advance parole to cure the unlawful entry.
Question: Do they need to get a waiver for unlawful presence?
Answer: No. Since the entry of advance parole is considered a legal entry, a waiver is not necessary. A waiver is required only if there is no lawful entry to the U.S.
Question: After returning to the U.S. on advance parole, what is the immigration status of the person involved?
Answer: He or she is on a lawful status as a TPS holder and had entered legally based on advance parole. Thus there is no penalty required to pay for unlawful presence or waiver to file for.
Question: What is an example of this situation?
Answer: Jose is a citizen of El Salvador. He entered the U.S. on January 1, 1986, without inspection. He is now married to a U.S. citizen. His wife filed an I-130 petition for him and was approved. However, he could not adjust status because he entered without inspection. Jose is qualified for TPS and advance parole as citizen of El Salvador. To see his ailing mother he applied and was approved for advance parole. He was able to travel to El Salvador and come back to the U.S. His entry to the U.S. using advance parole is a legal entry. He can apply for adjustment of status without filing for a waiver of unlawful presence.
Question: What is the advantage of Advance Parole against Provisional Waiver?
Answer: Provisional Waiver requires filing of I-601A waiver for unlawful presence whereas TPS advance parole adjustment do not need to file a waiver. A waiver is hard to get because there is a need to prove extreme hardship to the U.S. citizen spouse or parents.
Question: Can advance parole through DACA be used as a basis of adjustment of status if you are married to a U.S. citizen or has son or daughter 21 years or over who are U.S. citizens?
Answer: Based on the decision in Matter of Arrabally, the advance parole cured the illegal entry and the DACA holder may also use this path to adjust status.
Warning: The immigration law is complicated and you need to seek the advice of an experienced immigration attorney. If you have a criminal record you may not be able to use this path.