Seyfarth Synopsis: U.S. Citizenship and Immigration Services (USCIS) has announced an important policy change that will benefit noncitizens holding Temporary Protected Status (TPS). The new policy permits USCIS to issue a new TPS travel authorization document, amending the previous mechanism required for TPS to receive foreign travel permission. This policy change is significant because noncitizens who enter on this new TPS travel authorization will now be considered as “inspected and admitted,” and accordingly may qualify for adjustment of status to lawful permanent resident (green card) status with an underlying employment-based or family-based immigrant visa petition.
On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum: Rescission of Matter of Z-R-Z-C– as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries, announcing a new pathway for persons granted Temporary Protected Status (TPS) to travel outside the United States and be readmitted in a legal status that would allow them, in certain circumstances, to qualify for lawful permanent residency.
This memorandum, written in close consultation with the Department of Homeland Security’s Office of General Counsel (DHS OGC), is an attempt to better harmonize and administer decades of TPS protocols that have been at times inconsistent or infeasible for TPS holders as well as their dependents and other family members. Just last year, the Supreme Court held, in Sanchez v. Mayorkas, that while a grant of TPS could not be considered an admission, it still constituted a “kind of lawful status” which USCIS has interpreted to make the shortcomings of Matter of Z-R-Z-C- warrant a rescission. (Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021)).
Created by Congress in 1990, TPS is available to eligible noncitizens present in the United States who are nationals of a foreign country that has been designated for temporary protection by the Secretary of Homeland Security. These countries currently include Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Syria, Somalia, Sudan, South Sudan, Ukraine, Venezuela, and Yemen. All designations of countries for TPS are discretionary, and before any such designation can occur, the DHS Secretary must make a formal finding that conditions in the particular country meet one or more alternative statutory criteria, namely, the presence of ongoing armed conflicts, environmental disasters, or “extraordinary and temporary conditions.”
In general, a noncitizen physically present in the United States who meets the TPS statutory criteria may be granted temporary protection regardless of one’s underlying immigration status and regardless of the lawful or unlawful manner of entry into the country. Broadly, TPS provides protection from removal by DHS, carries with it the inherent right of work authorization incident to TPS status, and allows for the submission to USCIS of an application for advance permission to travel abroad and be readmitted to the US. The USCIS July 1 Policy Memorandum (discussed below) addresses the new process envisioned by the agency for granting pre-departure consent to travel abroad and be readmitted, and explains potential eligibility to qualify for adjustment of status.
The Former Policy of Parole but not Admittance?
Over the years, the immigration agencies have inconsistently characterized pre-departure requests by TPS beneficiaries to travel abroad and be readmitted to the United States. The courts have also been at odds. The legacy immigration agency, Immigration and Naturalization Service (INS), and USCIS have, at times, treated advance parole travel authorization as both an “inspection” and a lawful “admission,” and at other times, have declined to deem a parolee’s permitted reentry to the United States as an admission, or, admitted the TPS beneficiary in the status held prior to the TPS application (if any).
In 2016, the USCIS Policy manual was updated to reflect that a “TPS beneficiary who was inspected and permitted to enter – whether admitted or paroled – after traveling abroad with TPS-related advance parole documentation met the inspected and admitted or inspected and paroled requirement for purposes of adjustment eligibility.” In 2020, however, the policy changed and USCIS formally adopted a decision of its Administrative Appeals Office (AAO), Matter of Z-R-Z-C-, in an attempt to standardize the adjudication and manner of entry by TPS beneficiaries who requested advance permission to travel abroad and return.
Matter of Z-R-Z-C- held that any returning TPS beneficiary who received advanced parole would not be considered as having been lawfully “admitted” upon return to the United States. Further, because TPS is available to qualifying noncitizens regardless of their manner of entry, Matter of Z-R-Z-C-, prevented a noncitizen granted TPS from being treated as having received a “lawful admission” after returning from travel abroad. Lawful admission is essential for immigrant visa applicants to apply for and be found eligible to adjust status to lawful permanent resident or “green card” holder.
Meet the New Memo
In its July 1 Policy Memorandum, USCIS rescinded Matter of Z-R-Z-C- and instead provided an important opportunity for TPS holders seeking authorization to travel internationally and be assured of readmission. Effective immediately, TPS holders may now seek travel authorization from USCIS by requesting issuance of a “TPS Travel Authorization” on the newly created Form I-512T.
What Will a TPS Beneficiary Need to Travel Abroad and Be Readmitted?
According to the July 1 Policy Memorandum (and an alert USCIS made available on its website shortly after publication), the agency will begin issuing a new type of travel document to TPS beneficiaries, known as a Form I-512T. For the time being, however, TPS beneficiaries requesting a Form I-512T travel document must complete and submit the same form they previously used in applying for advance parole, i.e., the Form I-131, Application for Travel Documents. Moreover, those TPS beneficiaries who previously received advance parole may still travel on that document and will be treated upon return as having been inspected and admitted. It is particularly critical that TPS beneficiaries consider their individual immigration history before departing from the United States.
What Does This Mean for Employers?
Given this veritable sea change in immigration options for TPS holders, employers with a large population of workers in TPS status should anticipate requests for vacation or leave in the near future. More significantly, employers may now be receiving increased requests to sponsor their TPS workforce for permanent residency under an employment based sponsorship category. As explained in the USCIS Policy Memorandum, this will require the availability of an immigrant visa, as well as no other bars to adjustment, and a favorable exercise of discretion. Some employers may offer financial or other assistance in an effort to connect their employees with competent immigration counsel to discuss employment based immigrant visa sponsorship and adjustment of status. At a minimum, employers should remind their employees of the need to have their individual situation reviewed.
While this change affects a TPS beneficiary’s ability to travel outside of the United States, be readmitted, and possibly qualify for adjustment of status, it is still too early to tell if this will have any impact on the Form I-9 process. We will be waiting to see what the new I-797, Notice of Action will look like in order to take a specific stance, but for the time being it is important to remember that TPS beneficiaries still have their choice of presenting any acceptable List A, B or C documents for the Form I-9.
For questions related to the new TPS Policy Memorandum, or for any other issues regarding I-9 compliance, U.S. Immigration and Customs Enforcement (ICE) worksite-enforcement investigations, E-Verify compliance, Department of Labor immigration-related wage and hour investigations, general H-1B visa compliance, and DOJ-IER antidiscrimination matters.