Immigration and firm news

Is Your TPS Expiring? Now is the Time for Making Backup Plans

The Trump Administration has terminated Temporary Protected Status (TPS) for nationals of several countries with expiration dates in 2018 and 2019.  Make sure to get your re-registration applications in on time. Even though work permission may be automatically extended, we recommend applying for a new EAD until the final expiration date in case you need it for a new job or renewed drivers license or other benefit.  Here is a list of the upcoming expiring and re-registration TPS programs:

Haiti: expires 7/22/19 – File to re-register 1/18/18-3/19/18

El Salvador: expires 9/9/19 – File to re-register 1/18/18-3/19/18

Honduras: expires 7/5/18 – File to re-register 12/17/17-2/13/18

Nepal: expires 6/24/18 Re-registration ended

Nicaragua: expires 1/5/19 File to re-register 12/15/17-2/13/18

Somalia: expires 9/17/18 Re-registration ended

Sudan: expires 11/2/18 Re-registration ended

S. Sudan: expires 5/2/19 Re-registration ended

Syria: expires 3/31/18 Re-registration ended Updated 1/31/2018: Extended to 9/30/2019. Follow this link for further re-registration instructions.

Yemen: expires 9/3/18 Re-registration ended

Right now is a good time to make backup or alternative plans. As a Seattle immigration lawyer, over the years, I have seen immigrants in a general state of denial or procrastination when it comes to dealing with their immigration status. Here are some options to think about now and discuss with an experienced immigration attorney in the coming weeks. Don’t wait until your TPS expires! While it’s possible Congress may ultimately come up with a legislative fix and transition to a path to citizenship, I wouldn’t count on it until it’s a done deal.  Work under the assumption that the dates above are looming ahead and back up plans need to be dealt with now.

Family based immigration options

While you have had TPS, did you marry a green card holder or a US citizen? You should have a way to immigrate in the marriage based category. First, we need to determine how you last entered the USA. Was it without inspection, with a visa, were you “waved through,” or did you use advance parole? Each of these methods of entry has different rules about WHERE you can process your green card, and WHETHER you need a waiver of inadmissibility. Are you eligible to “adjust status” in the USA or do you need to apply for an “immigrant visa” at a US consulate abroad? Secondly, if married to a permanent resident, that puts the immigrating spouse in the “F-2A” “preference” category subject to the quota.  Is the resident spouse eligible for naturalization? If so, becoming a US citizen would put the foreign spouse into the “immediate relative” category. We would need to compare how long it will take to be a citizen (about a year here in Seattle) to place in line in the F-2A quota.  F2A has quota delays for everyone. More importantly, to adjust status as a F-2A beneficiary, the foreign spouse must be in legal status in the USA and must have been “inspected and admitted” or “paroled” into the USA. See the Visa Bulletin to track quotas and my video on how the quota works.

Do you have a US born child who is over 21 or or about to turn 21 soon? If you do, I would start the process for your adult child to sponsor you ASAP because the restrictionists in Congress are looking at removing the ability for a child to sponsor a parent in the future.

Do you have a parent or sibling who may have filed an I-130 visa petition years ago that is approaching being current in the quota? We should update where that case is in the quota, how soon it will be current, and determine where you can process the balance of the case (adjust status or consular process). We would want to know if you are eligible for “245(i)” that allows for adjustment of status in the USA regardless of how you last entered if there is an old I-130, PERM or other petition that was filed before 1998 or 2000. We can look at whether you can preserve your age under 21 under the Child Status Protection Act.

Two cases in the 9th Circuit and 6th Circuit Courts of Appeals have held that TPS holders can adjust status even if they originally entered the USA without inspection. (The 9th Circuit includes the states of California, Oregon, Washington, Hawaii, Alaska, Idaho, Montana, Arizona Nevada, Guam and Northern Mariana Islands. The 6th Circuit includes the states of Michigan, Kentucky, Ohio, and Tennessee.) These Courts held that the grant of TPS is an “admission” for adjustment of status purposes.  To adjust status, one must have been “inspected and admitted” or paroled. Inspection and admission includes presenting a visa to a border agent and being let in, or showing up at a border station even without a visa and being “waved” through anyway. Parole is a different status that must be granted to be let in. Examples include “advance parole”, “humanitarian parole,” “entrepreneur parole,” “port parole.”  Before these or other cases get to the US Supreme Court, now would be a good time to file for adjustment of status if you live in one of these Circuits, have TPS, and last entered without inspection.  If you live elsewhere in the USA, and based on other case law, you may be able to adjust status if you have advance parole and last entered using the advance parole.  People living outside the 9th and 6th Circuits should apply for advance parole if they don’t already have it. There is some risk of it not being approved in time before TPS expires, or there could be some trouble returning depending upon the person’s entire immigration history. Therefore, talk to counsel before leaving.

If someone does not qualify to adjust status, (e.g., does not live in the 9th or 6th circuits, or does not have advance parole), but the person has an immigration sponsorship option, the other place to get a green card is at the US consulate abroad by applying for an “immigrant visa.” Once admitted with the immigrant visa, the plastic green card will be made.  However, the act of leaving the USA to go to the consular interview could trigger the unlawful presence bars (3 or 10-year bar or permanent bar). The 3 and 10-year bars do not prevent immigration if a waiver is approved.  TPS holders should seek counsel to determine whether the unlawful presence or permanent bars apply, whether any other bars apply, and likelihood of success to get a waiver  in order to get an idea of what pursuing an immigrant visa might look like for you and your family. If the only ground of inadmissibility is unlawful presence, you can apply for a stateside provisional waiver of the unlawful presence (I-601A) prior to leaving the US for a consular interview. You will need a “qualifying relative” however. You will need to show not getting the green card will be an “extreme hardship” to a US citizen or Lawful Permanent Resident parent or spouse (not to a child!). Otherwise, other types of waivers are filed after the consular interview and you will need to wait abroad for that waiver.

Whether or not you can adjust status, all the usual grounds of inadmissibility apply when applying for a green card, whether through adjustment of status or an immigrant visa.

Employment based options

Being on TPS with work authorization means an employer can sponsor you for an employment based green card while you have work authorization without the employer getting in trouble for hiring an undocumented immigrant. Most employers have to advertise and recruit for US workers first in a process called labor certification or PERM. Once that is approved, the employer files a visa petition. Depending upon the requirements for the job and the category, that dictates when adjustment of status or an immigrant visa abroad can be filed because of potential quota issues. Employment based immigration requires careful planning and strategy.  A lot of TPS holders have been here long enough to have acquired extensive education, skills, reputation, and/or assets for qualification in the various employment and investor categories with no quota or shorter waits.  Because it can take a minimum of 12-18 months or more, we should look at options in the employment area right a way.

One of the issues to contend with in employment based green card immigration is whether the applicant can benefit from INA 245(k) which allows someone out of status who is not working unlawfully to still adjust status provided the out of status time does not exceed 180 days. We would need to look at whether you had/have unauthorized status before obtaining TPS or after it expires.

Another possibility is Entrepreneur Parole. This regulation was to go into effect last year, but the Trump Administration abruptly ended it. However, they were sued and lost. The program is in effect now. Unfortunately, they plan to issue another regulation later this year to revoke it. But, in theory, a TPS holder could benefit. It requires investments by US citizen or green card holder qualifying investors (individuals, angel or VC funders) of at least $250,000 or $100,000 in grants in an entity where the immigrant has at least a 10% ownership interest and performs a critical role in the organization to help it rapidly grow and generate revenues and/or jobs. We can also look at the EB-5 program and other categories, some of which take a long time to process while others take shorter processing times.

There are a few employment categories where applicants can sponsor themselves and bypass PERM if their work is of national interest or their reputation is at the top of their fields.

Victim Visas and Green Cards

Have you been the victim of or a witness to a crime committed against a family member in the USA? of trafficking in labor or commercial sex? of domestic abuse by a US citizen or green card holding family member? You should collect any police reports and bring those to an attorney to evaluate your eligibility for U (crime victim), T (trafficking victim) visas, or VAWA (domestic abuse under the Violence Against Women Act). These categories eventually lead to permanent residence though they do take a long time to process.

Nonimmigrant visas

It may be worth looking into obtaining a nonimmigrant visa abroad such as work visas if not currently eligible to adjust status. Depending upon whether there was a period of unlawful presence before or after having TPS, there is a nonimmigrant waiver available which waives most grounds of inadmissibility.  They do take a minimum of 6 months to process and it is submitted after a visa interview at a US consulate abroad. Some nonimmigrant visas like H-1B and L-1 visas have “dual intent” so that it would not matter so much that the person lived for years in the USA. Other potential visas would be E-1/E-2 (treaty investor or trader visas), O and P visas for entertainers, athletes and others. It would probably be difficult to get a student or tourist visa due to needing to prove a permanent home abroad after living in the USA for many years.  However, once re-established in the home country, this may be possible later on. I doubt the Trump Administration would make any particular exceptions for people who previously held TPS.  On the other hand, not everyone who has had TPS entered the US illegally or was out of status when TPS went into effect. Some people were in lawful status when TPS went into effect for them. Foreign students who had F-1 visas labeled “D/S” are not subject to the 3/10 year bars. However, to come back as a student, tourist, exchange visitor or in any category requiring intent to return home, visa applicants may have a lot of trouble qualifying for such a visa until a period of resettlement abroad.

Military families

Do you have a family member (parent, spouse or child) who is an active member of the military or is a veteran? You should collect evidence of that person’s military record (DD214, discharge papers, etc.) and show those to an experienced immigration lawyer to determine if you may be eligible for Parole in Place, or other family military benefits, or naturalization. FYI: if you are between 18 and 26, you MUST register with the Selective Service regardless of status. This will be important later if you have the opportunity to naturalize. Registering is to build a pool in case there is ever a draft. It is not the same as enlistment since TPS holders may not enlist.


Some people from TPS countries may have legitimate, bona fide claims to asylum or withholding of deportation. Asylum requires showing a “well-founded fear” of persecution “on account of” (or because of) race, religion, nationality, political opinion or membership in a social group. Although asylum applications must be filed within one year of entry, there are some limited exceptions such as changed circumstances and more. Asylum is very difficult to get, but always worth evaluating because if approved, after one year, the person can file for a green card. Asylum can be based on past or future persecution. Withholding of deportation does not lead to a green card but also does not lead to deportation. It has a higher standard of proof. The Convention Against Torture (CAT) is a similar application, yet an even higher standard.

Asylum can be filed “affirmatively” – step forward and apply to the asylum office. If that office doesn’t grant, it will be referred to the immigration court as a “defensive asylum case” where the person can reapply. Withholding and CAT are only available in court. Filing a frivolous or false asylum case can have long term negative consequences on immigration status including preventing immigration in any category in the future.  If you see advertisements for “10-year green cards” be very, very wary, as this is entirely misleading because some of these people file frivolous asylum cases to get your case in court proceedings. Update: On January 29, 2018, USCIS updated its asylum interview priorities.  The asylum office will interview first cases that were previously rescheduled, then applications pending 21 days or less and then all other pending cases starting with the newest cases. Why do you think they are doing this? They expect a rush of TPS holders to file for asylum and they want to prevent you from getting work authorization (the earliest you can file is 150 days after filing the asylum application), and they are looking to deny fraudulent, frivolous or weak cases as soon as possible.  So, be very, very careful and have your case evaluated by an experienced immigration attorney.

Cancellation of removal

Cancellation is only available in immigration court. It requires 10 years of continuous residence prior to the issuance of a Notice to Appear (which starts the removal proceedings in court), good moral character and “extremely unusual hardship” to a US citizen or green card holding parent, spouse or child. There are some other categories with shorter time periods in the cancellation area. Many TPS holders have been here more than 10 years and may qualify for cancellation before the government issues Notices To Appear (NTA) once TPS ends. NTAs start the immigration court proceedings.  Therefore, NOW is a good time to build a file of your evidence of living in the USA for 10 years, and to get legal advice about whether you have a good case of hardship and good moral character. Some people have very old court cases that were “administratively closed.” When the NTA or older Order to Show Cause was issued, that could have cut off the accumulation of residence required for cancellation. Therefore, it is important to meet with an attorney ASAP to review those old court records. The Attorney General has ordered the judges to reopen those old administratively closed cases.


If you have ever been arrested, cited, or convicted of a crime anywhere in the world, regardless of whether it was dismissed, expunged or continued, you should consult an immigration lawyer who understands the immigration consequences of crimes. You will want to order all court records before you set up your first meeting with an attorney, as attorneys need to view and evaluate all the court records.  This could affect what immigration options you have, and how the government could charge you in removal proceedings if they end up issuing NTAs once TPS expires. Many times there are options to go back into criminal court and get a revised or vacated order, or a better outcome for immigration purposes than what was done or in effect years ago. In the meantime, stay out of trouble. This includes absolutely no use, abuse, possession, distribution of any drugs, including marijuana even in states where it is legal, since the federal government does not follow state law. Do NOT drive under the influence of drugs or alcohol.  This can permanently ruin options for future immigration, or at the least, make your process very long and expensive.

You should discuss with an attorney whether you received any public benefits, if you ever lied on a visa or TPS application, if you have given false oral testimony or false documents to an immigration or consular officer, whether you ever claimed to be a US citizen (on license, permits, scholarship, mortgage or other applications, and on form I-9s at work), whether you ever failed to file tax returns, or ever brought other people into the USA illegally or facilitated such activity.  There may be exceptions or waivers available when you try to immigrate….or not. In addition, we will need to know whether you entered the US illegally or had a period of unlawful stay before obtaining TPS or after TPS ends, whether you were ever caught at the border or were ordered removed previously. In most cases we will want to file a Freedom of Information Act (FOIA) request with all the immigration agencies to get a copy of your government files. This can take months to receive. Therefore, it is a good idea to file FOIA requests NOW and run FBI and state criminal background checks.

Obscure programs

There are a couple of other obscure programs worth looking at with your counsel. One is NACARA (the Nicaraguan Adjustment and Central American Act), which has to do with some old asylum cases that were wrapped up in litigation in the ABC v. Thornburgh case in the 1990s. This is another reason to run FOIA requests now to get a hold of those old government files. There is a NACARA special suspension of deportation rule as well. Another program is Special Immigrant Juvenile for some young people under 21 with TPS. There could be other obscure programs that apply based on your country of birth. And, as always, attorneys should be looking to see if you are a US citizen and don’t know it!

The other relatives!

It’s really, really important for your attorney to evaluate ALL of the immediate family members. Sometimes other family members have better cases where you can ride along as a derivative relative. This includes members with more education and work experience for work visas and green cards, relatives who were victims of crimes, trafficking or abuse, family members with better asylum claims than you, family members who are, who can become, or have “qualifying relatives” for waivers.  A holistic evaluation of the whole family is recommended.

In conclusion, with TPS ending for people of many nationalities, it’s best not to wait until the last minute when TPS expires to get legal advice. It’s better to have an evaluation now and plan for backup plans sooner rather than later.