On June 7, 2021, the United States Supreme Court unanimously ruled that Temporary Protected Status (TPS) does not overcome the legal entry requirement individuals must satisfy to apply for Lawful Permanent Residence (LPR) under 8 U.S. Code Section 1255. The Court upheld a circuit court decision that found “lawful status and admission [as] distinct concepts” and that “establishing the former does not establish the latter.”

The TPS program is designed to protect foreign individuals present in the United States who are from countries that have “unusually bad or dangerous conditions.” Under TPS, a person is “considered as being in, and maintaining, lawful status as a nonimmigrant.” It allows these individuals to work and live in the United States free from worry about deportation while their countries continue to be unsafe. Usually, an individual who illegally entered the United States is still qualified to obtain TPS.

8 U.S. Code §1255 is a section of immigration law that allows for nonimmigrants to adjust their status to that of a person admitted to the country as a permanent resident, therefore providing that individual with a pathway to citizenship. This section generally requires a lawful admission before a person can obtain LPR status.

The petitioner in the case, Jose Santos Sanchez, is an El Salvador citizen who illegally entered the United States in 1997 but was granted TPS in 2001 by the U.S. federal government after El Salvador was devastated by earthquakes. When he attempted to adjust his status to become a permanent resident (Green Card holder), he was denied by the United States Citizenship and Immigration Services (USCIS) because they found him ineligible due to his unlawful admission to the country.

Sanchez appealed the decision and was granted a summary judgment by the District Court in his favor. They found that TPS recipients should be treated “as though had been ‘inspected and admitted” to the United States.

However, the Third Circuit reversed the decision and upheld USCIS’s initial decision that Sanchez was ineligible for permanent residence. Earlier this month the Supreme court upheld the Third Circuit court decision, arguing that “his TPS does not eliminate the effect of that unlawful entry.” The Supreme court further held that “a grant of TPS does not cure a foreign national’s entry without inspection or constitute an inspection and admission of the foreign national,” as demanded by §1255.”

In Sanchez’s reply brief, he argued that there is an “indissoluble relationship between admission and nonimmigrant status.” However, the Court found nothing in the immigration law that supported that claim, as there are nonimmigrant categories without the admission requirement. No court disputed that Sanchez entered the country; however, he was not inspected by an immigration officer and was therefore excluded from the ability to apply for LPR status.

As of March 2021, there are an estimated 400,000 foreign nationals currently holding TPS. Of those, 251,567 are from El Salvador, second only to citizens of Venezuela, with another 320,000+ individuals eligible for TPS who are in the United States. The Secretary of Homeland Security has the authority to extend TPS at least 60 days before the status is set to expire, and there are no limits to how many times the Secretary can extend the status. The extension period only pertains to those already holding the status.

In early 2018, the Trump administration terminated TSP for Salvadorans, beginning the process of sending these individuals back to El Salvador by September 2019. However, on December 9, 2020, the Department of Homeland Security extended TPS for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through October 4, 2021, pending multiple lawsuits claiming the termination was unlawful.