Brian S. Weiss Immigration Law Blog on Lawyers.com

Earlier this year a United States Citizenship & Immigration Services (USCIS) internal draft memorandum was released without authorization to the general public. This memorandum discussed alternative solutions and relief options designed to promote, among other things, family unity and foster economic growth in the absence of comprehensive immigration reform. After the unauthorized release of this memorandum, the USCIS reiterated that these proposals were not official action or policy changes but were merely a way for the USCIS to think of alternative solutions to festering immigration problems that our political apparatus had proven unable or been unwilling to resolve.

Without discussing the merits of all of these proposals suggested in the memorandum, one idea that I believe should be implemented is the policy change that would allow individuals in Temporary Protected Status (TPS) to adjust or change status in the U.S. TPS, for those unfamiliar with this status, may be granted to eligible nationals of a foreign country when the U.S. government designates that these individuals are temporarily unable to return home safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately due to temporary unfavorable conditions. An example of a country designated for TPS status is Haiti after its recent catastrophic earthquake.

In most situations, extensions of TPS status are granted to nationals of these TPS-eligible countries for many years. This allows individuals who have been granted TPS to remain in the United States legally for long periods of time despite the fact that many may have previously violated U.S. immigration laws, such as entering the U.S. without authorization. Many who are granted TPS in the U.S. are provided employment authorization and as the years have passed, have started families in the U.S., e.g., by marrying a U.S. citizen or having U.S. citizen children. Based on legal opinions issued by the General Counsel for the legacy INS in the early 1990’s, individuals in TPS, however, are deemed ineligible to adjust or change status in the U.S. under most circumstances. There are exceptions to this general rule but, unfortunately, they do not apply in most situations.

Imagine if you were allowed to remain in a country lawfully for a long period of time, work legally therein, start a family, etc. but you were unable to guarantee your ability to remain in that country permanently with your family. The USCIS in this leaked memorandum analyzed the potential unfairness of its previous interpretations and was trying to determine if its interpretation in the draft memorandum would be consistent with the statute. If the USCIS’s interpretation is changed per the memornadum, this will allow TPS individuals with close U.S. family to potentially obtain green cards in the U.S.  

As I mentioned earlier, it should be noted that many of these individuals who have received TPS status may have entered the U.S. illegally or committed other immigration violations. I feel violations of our immigration laws should be addressed by the USCIS if a change in interpretation is made in order to support the idea that breaking our immigration laws should not be tolerated. Thus, I believe a penalty fee, similar to the one enacted under section 245(i) of the INA, would be a fair punishment for any previous violations of our immigration laws. Obviously all other requirements for green card procurement, including a complete security check, should remain as well.

I commend the USCIS for “thinking outside the box” in trying to implement policies that make sense under our immigration laws and I believe this change for individuals in TPS status would be a positive development for many who are already in the U.S. in a lawful “status.”

This article has been provided courtesy of the NY immigration lawyers at Garganigo, Goldsmith & Weiss, (646) 233-2774, www.ggw.com.