Carlos Batara – Immigration Lawyer header image
immigration-questions-and-answers

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. The Temporary Protected Status program is in great flux due to various court cases.

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.)

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 will first assume your father entered the country lawfully.  Moreover, I will assume he has never left the U.S. since that entry.

If this is his situation, you could file an immigrant petition for him and he would be eligible to see permanent residence at an interview here in the U.S.

Let’s move forward to another, trickier issue.

I am now 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.

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.

Historically, these immigrants, although 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.

This process of going abroad was codified by the Supreme Court in the recent Sanchez v. Mayorkas ruling.

There’s an important 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 United States.  You can consider a waiver to be similar to 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.

Be careful that if your father is going to seek such a waiver that he has a qualifying relative – a parent or spouse, who is a U.S. citizen or permanent resident.

Even though you or your sibling could petition for his green card, you do not count as a qualifying relative. Without a qualifying relative, a waiver cannot be won.

One more point before closing.

You said that your father has had TPS a long time.  This means he entered the U.S. many years ago.  But you did not state when he entered.

Also, you did not state when your mother and father married.  Did your mother ever file papers for your father?  If she did, and those papers were filed before April 30, 2001, he may possibly still qualify to attend his interview here in the U.S. – without having to leave the country and seek a waiver to return.

(This same point may apply if any of your siblings filed papers for him, or if any of your father’s siblings filed papers for him, before the date listed above.)

As a final note, I believe that the April 30, 2001 cut-off date will be changed one day.  Perhaps to 2005, 2010, 2015, or beyond.

I mention this because if someone did attempt to sponsor him many years ago, but not before 2001, with a little luck, he may still qualify for green card benefits in the future.

This means he should not try to apply for permanent resident status without going over the details of his case with a seasoned immigration lawyer.  Given your father’s immigration history, a thorough analysis of the chance for success is needed before moving forward.

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

By Carlos A. Batara, Filed Under Q&As: Special Immigration Programs.

Ready to take a serious and honest look at the strengths and weaknesses of your immigration case? Let’s get started with a personalized strategy and planning consultation . . .

batara-immigration-law-telephone-numbers