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Since the White House has announced the end of Temporary Protective Status (TPS) for Haiti, El Salvador, and Nicaragua, and possibly Honduras to be included soon, thousands of immigrants are looking for options to help them remain legally in the United States. This post discusses obtaining a green card through your employer, specifically as it relates to unlawful presence.
Employment-Based Green Cards
Employers may petition for their foreign-born employees for green cards provided that they meet the qualifications of one of the employment-based categories. Most individuals are going to fall into the category of the EB-3 visa, which includes both skilled and unskilled workers as well as professionals.
The EB-3 process generally involves three steps: 1) getting the labor certification, 2) filing the I-140 petition, and 3) consular processing or adjusting status. You can read more about the process in our blog post here.
While this process generally takes 12-18 months, there is currently no wait time for a visa under the EB-3 category for individuals from the countries where TPS is ending. But even still, if you are interested in this option, it’s best to look into it right away given that once TPS ends, you are out of status and the unlawful presence clock starts ticking, as discussed below in more depth.
What is Unlawful Presence?
Unlawful presence is generally the time an individual spends in the United States without permission. There is a difference between being “out of status” and “accruing unlawful presence,” which gets complicated and is not discussed here.
On April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) went into effect, and any unlawful presence after that date counts towards an individuals total unlawful presence. Any unlawful presence before that period is not counted. See IIRIRA 301(b)(3). Unlawful presence is generally counted in the aggregate, meaning that it is the total time someone has been unlawfully in the United States, not just on any one visit.
Many people who have TPS first entered the United States without inspection (i.e. without permission), and therefore accrued some amount of unlawful presence. For example, TPS for El Salvador went into effect in 2001, so any amount of time an individual spent in the United States without permission between April 1, 1997 and their grant of TPS would be considered unlawful presence.
How Does Unlawful Presence Affect Green Card Petitions?
There are generally two ways that unlawful presence can affect a green card petition. The first is a point of law found in INA 212(a)(9)(B), and the other is found in INA 245(c)(2).
Consular Processing and the Unlawful Presence Bar of INA 212(a)(9)(B)
This section of the Immigration and Nationality Act makes an individual “inadmissible” to the United States if he or she has been unlawfully present in the U.S. for more than 180 days. That means that in order to “be admitted” as a lawful permanent resident (green card holder), one must obtain a waiver of inadmissibility. Many people with TPS will find that they do not qualify for a waiver of inadmissibility, because they do not have a U.S. citizen or permanent resident spouse or parents who can be a “qualifying relative” for the waiver.
However, there are a few things to note about these bars. First off, they are triggered upon departure from the United States. Therefore, if someone has never left the United States, there are not currently inadmissible. But if he or she departs the United States for any reason (except for an exception we will discuss in a moment), the bars are triggered and the person is inadmissible.
There is one exception that is noteworthy: according to a case decided by the Board of Immigration Appeals called Matter of Arrabally and Yerabelly, leaving the United States pursuant to a grant of advance parole is not considered a departure for the purposes of the unlawful presence bars.
So what can you do? If you have unlawful presence that you accumulated before being granted TPS (and you never left the U.S. previously and triggered the bar), and you have an employer that wants to petition for you, you could have your employer file the visa petition (Form I-140), and then once that is granted, apply for advance parole in order to attend your visa interview in your home country. Then, you will not have triggered the unlawful presence bars and can consular process for your immigrant visa, and then your green card.
While this is an exciting theory, it is important to note that this would be highly risky given that foreign consulates do not have to recognize cases of the Board of Immigration Appeals. And while having advance parole means you’ve been granted advance permission to re-enter the United States, there have been nightmare stories of advance parole being granted in some circumstances or someone not being allowed back in. So this needs to be viewed as a high risk/high reward option: if it works, at the end of the process is a green card. But the consequences if it doesn’t could mean being stuck outside the United States.
Adjustment of Status and 245(c)
Adjustment of status is the process by which an individual switches from lawful status in the United States to a green card holder. INA 245(c)(2) prohibits adjustment of status for anyone who has failed to maintain continuous lawful status since entry into the United States.
Note that this doesn’t simply mention unlawful presence, although unlawful presence is certainly not maintaining continuous lawful status. This bar applies to anyone who has fallen out of status, i.e. an F-1 student who stopped going to school, a person on an H-1B who lost a job and didn’t apply for a change of status. This bar also applies to anyone who has accepted or engaged in unauthorized employment prior to the filing of their application for adjustment of status.
However, 245(k) qualifies 245(c) and says that notwithstanding 245(c), someone present in the United States pursuant to lawful admission who has not engaged in unauthorized employment or failed to maintain lawful status subsequent to the lawful admission may still adjust status.
What does this mean? Well, there are certain circuit courts who have held that a grant of TPS constitutes “inspection and admission” under INA 245(a). Therefore, an argument could be made that after the TPS grant, someone is present in the United States pursuant to lawful admission, and therefore any unlawful presence prior to that should not be counted under 245(k).
This argument would likely be best put forth in a jurisdiction where the courts have specifically found TPS to be an admission, which includes states in the 6th Circuit (Tennessee, Ohio, Michigan, and Kentucky) and the 9th Circuit (Washington, Oregon, Nevada, Montana, Idaho, Hawaii, California, Arizona, and Alaska). The 11th Circuit (Alabama, Florida, and Georgia) has specifically found that TPS is not an admission for the purposes of 245(a). While you could try this argument in any circuit besides the 11th, it would likely involve lengthy litigation. It’s also important to note that while this is a good argument, it’s possible a court could find that TPS still doesn’t cure any issue under 245(c) because while the individual has been admitted, he or she is not “present in the United States pursuant to lawful admission” i.e. that they first entered without permission.
Another possible way to go about it would be to leave and return after being granted advance parole, as this certainly cures 245(a). However, this is parole and not admission, so it’s likely the person could still be found to be barred from adjustment of status because 245(k) is not applicable because the person has not been “admitted” but instead paroled.
A Note about the Permanent Bar
One additional thing is worthy of note: if you are subject to the “permanent bar” of INA 212(a)(9)(C), none of these options apply and an employer petition is not possible.
This area of law is super complicated and carries a lot of risk, so its important to talk to a qualified immigration attorney before attempting any of these options.