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My Father Is About To Lose His TPS Status. Can He Get A Green Card Through His Children?

Question:

“My father is from Honduras. He’s had TPS for a long time. We’re scared because we heard a news story that TPS is ending soon.  He is living in Brooklyn with my younger sister, her husband, and kids. He moved there after he and my mother got a divorce. My sister and I are afraid he is going to get deported when TPS ends. Is there anything we can do to help him become a permanent resident?”

(Submitted by Beatrice G., Loma Linda, CA)

Answer:

The answer to this question is deceivingly complicated.

To respond, I will need to begin by making a few assumptions.

One, I will assume both you and your younger sister are over 21. Since you mentioned that she is married with children, my guess she is an adult.

Two, I am also going to assume you and your sister are U.S citizens.

I mention these two points because a U.S. citizen child over the age of 21 can immigrate a parent. This means either you or your sister can file an immigrant relative visa petition for your father.

If you are not U.S. citizens, or over 21, then your father will be out of luck – unless you have another sibling who was born here and is over 21. (You did not mention how many children your father has.)

Let’s move forward to another, trickier issue.

Where your father lives.

Where your father lives could make a major difference in his ability to win a green card through you or your sister.

You did not tell me how or when your father entered the United States.  Thus, I am again going to make a few assumptions.

I am going to assume your father entered the U.S. without permission.  I am also going to assume he has never left the country since his first date of entry.  If either of these assumptions are wrong, then my analysis and response may be totally inapplicable to your father’s situation.

When someone enters the country, immigration law says they entered without inspection and without admission.

For the majority of Honduran immigrants who qualified for temporary protected status, this is true.  (Again, I assume this is your father’s situation, but I could be wrong.)

Historically, immigrants granted TPS benefits have not been allowed to attend green card interviews here.  Because they arrived without inspection and without admission, their only path to permanent residence was through a set of rules known as consular processing.

This means they had to go home for a green card interview.

There’s a catch here.  Because such individuals have lived in the U.S. for several years without permission, they are required to apply for and win a waiver – often called a family unification waiver – before they are allowed to return to the U.S.  You can consider a waiver to be like a legal forgiveness.

These waivers are not easy to win.  Here’s an article that explains the difficulty of winning such waivers: 8 Tips For Winning Your Waiver Case.

But there is good news.

The good news is that under recent court decisions, there are some states that I call TPS-to-Green Card friendly states. This group includes California.

Other states not TPS-to-Green Card friendly at the present time. New York is one of these states.

This means the following.

In California, the granting of TPS status to someone from Honduras is the equivalent of an inspection and admission.  As a result, your father can go to an interview for permanent residence at a local immigration office.

On the other hand, if he applies to adjust his status to permanent residency in New York, he will not be entitled to the same legal deference.  Over there, an award of temporary protected status is irrelevant for purposes of inspection and admission.  He would have to return to Honduras for his interview.

(For the record, there are a few other factors which might allow your father to process his application here, rather than abroad.  You have not provided any information that leads me to believe they apply in his case.  Thus, I am not going to discuss them here.)

It’s possible federal law governing New York on this issue will change and reflect a stance similar to that in California somebody.  Such an outcome is not guaranteed and your father should not take such a risk unless he first consults with a lawyer who feels strongly he can navigate your father’s case to victory in spite of the inspection and admission issues.

In short, the difference between filing in California versus New York is huge for your father and all similarly-situated TPS grantees.

The solution, it seems, may require adjustments to be made by your family, especially your father.  He could move back to California.  You could file an immigrant petition for him.

After he wins a green card, he could move back to your sister’s home.

Of course, he may be unwilling to undergo such a transition, especially if he has strong employment and community ties on the East Coast.

Whatever he chooses, I wish you and your family the best of luck.

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By Carlos A. Batara

(Filed Under Q&As: Special Immigration Programs)