Is there a permanent residency light at the end of the TPS tunnel?
Most news stories paint a doom and gloom picture about the termination of Temporary Protected Status programs.
But your TPS story does not have to end on a negative end.
Temporary Protected Status Update
On November 4, 2019, the Department of Homeland Security (DHS) announced the automatic extension of Temporary Protected Status for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan through January 4, 2021.
The extension is the result of three lawsuits which have temporary blocked the Trump Administration from terminating TPS for these six countries.
Regardless of the outcome of these cases, TPS, being a temporary program is subject to termination if not sooner, then later, for all countries currently granted TPS benefits.
Roads To Green Card Success For Temporary Protected Status Beneficiaries
Because Temporary Protected Status is a temporary program, you probably worry about what the future might hold for you and your family.
You undoubtedly have thoughts like:
- What will happen to my wife or my husband if I’m deported?
- What will happen to my children if I’m not around to help them?
- What will happen to all those who depend on me to make life a safe and stable place for them?
- How will I survive in a country that I haven’t seen in 10, 15, 20 years or longer?
You’re not alone.
Over 300,000 TPS holders share your concerns.
Well, there are options – eight potential options – which might enable you to make the transition from TPS holder to permanent resident even after the Temporary Protected Status program for your home country is terminated.
None of the pathways are simple or easy.
There are eight potential options which might enable you to make the transition from TPS holder to permanent resident. None of the pathways are simple or easy.Click to tweet
Each of them have strict requirements that must be met, but if you qualify, you win a green card and continue to live lawfully in the United States.
The eight programs:
- Family-Based Petitions
- Cancellation Of Removal
- Violence Against Women Act
- U Visas
- T Visas
Let’s go through them one-by-one.
1. Family Petitions For Immigrant Relatives
– Did you enter the U.S. without permission? –
Most immigration experts will tell you the straightest path to permanent residence is through marriage to a U.S. citizen.
There’s a slight problem.
The straightest path is not always straight.
That’s a problem with simple-sounding formulas. Simple sounding-formulas are not always as simple as they sound.
Until recently, most TPS beneficiaries were not allowed to change their status from TPS to lawful permanent residence.
Because they entered the U.S. without permission – they entered without being legally “inspected” or “admitted” by the government.
As a result, if a U.S. citizen wife wanted to file a petition for her TPS husband, he would have to go to his home country for the green card interview.
This created a huge problem.
Because such beneficiaries had lived here for several years without permission before becoming a TPS recipient, they would have to request a special permission to be allowed to re-enter the U.S.
You many have heard about this permission. It’s called a family unity waiver, a hardship waiver, or a I-601 waiver.
To say the least, such waivers are difficult to win.
That changed recently. Under two recent court decisions, some TPS beneficiaries can use the straightest path approach to apply for permanent residency.
Now the following family members can file immigrant relative visa petitions to sponsor you for green card status, which can be obtained here in the U.S.:
- A husband or wife who is a U.S. citizen
- A son or daughter, 21 years or older, who is a U.S. citizen
- A U.S. citizen parent, if you are single and younger than 21
2. Cancellation Of Removal
– Would your deportation cause extreme difficulties for close family members? –
We’ve just talked about the straightest road to permanent residency, a family petition filed by a U.S. citizen spouse, child, or parent.
But what happens if the road is blocked?
What if you attend an interview for permanent residency, but your green card application is denied?
Often, a denial of permanent residency is followed by a notice that the government intends to deport you. You’re given a date and time to show up at immigration court.
You’re now facing removal charges.
The most common defense at deportation proceedings for undocumented immigrants who entered without permission is cancellation of removal.
That’s what we’ll look at next.
Here is a crucial point to remember.
If you went to your permanent residency interview based on a petition by a U.S. citizen spouse or parent, you have what is known as a qualifying relative to request to cancel your removal.
They are not your only qualifying relatives.
Your minor U.S. citizen children under 21 (but not your adult children) can “sponsor” you as qualifying relatives – opposite the rule for filing a family visa petition where your U.S. born children had to be over 21.
(In other words, under cancellation of removal, your adult children, even if they are U.S. citizens, do not count as qualifying relatives.)
Further, your minor children, as well as your spouse or parents, can be either U.S. citizens or lawful permanent residents to serve as qualifying relatives.
Once you show that you have a qualifying relative, you need to demonstrate:
- Your qualifying relative spouse, children, or parents would suffer an exceptional and extremely unusual hardship if you are deported
- You have lived in the U.S. continuously for the last 10 years
- You have been a person of “good moral character” during these ten years
Unlike the other seven programs discussed in this article, cancellation of removal can only be raised as a possible option for winning permanent resident status at immigration court.
The other pathways can be pursued outside immigration court, as well as pursued at deportation proceedings.
In fact, even if an application is denied outside immigration court – such as a family-based visa petition or asylum – the issue can be raised anew before an immigration judge.
A second bite of the apple, so to speak.
For many TPS holders,especially from the older temporary protected status programs, there is a strong basis for proving hardship.
According to various immigration studies, thousands of TPS holders have resided in here for 20 years or more, are married to U.S. citizens and legal residents, and have U.S. born children. Nearly 1/3 have mortgages and 11% own their own businesses.
With strong guidance and preparation, these factors can set the tone for demonstrating the severity of suffering your qualifying relatives would experience if you are ordered deported back to your home country.
And if you win a grant of cancellation of removal, of course, you win permanent resident status.
– Are you afraid to return to your home country? –
If you were harmed in the past or believe you will be harmed if you are deported back to your country, you may qualify for asylum.
Not any type of harm will suffice. The harm you have experienced or you fear that you will experience must be “on account of” your:
- Political Opinion
- Membership In A Particular Social Group
Problems related to race, religion, and nationality are the most common harms raised in asylum cases. To the extent they are raised in asylum claims made by TPS holders, they are likely to have existed prior to their decisions to come to the United States.
In some countries, like Syria, where a catastrophic political situation fueled the exodus of refugees to the United States, TPS beneficiaries may be able to present winning asylum claims based on political opinion.
As a Riverside immigration lawyer, I’ve learned claims based on membership in a particular social group are far harder to win. But there is a ever-growing list of these types of asylum applications, including individuals stigmatized in their country of origin based on gender, homosexual and transgender preferences, certain diseases, or mental illness.
Generally, you must apply for asylum within one year of arriving in the United States – or you’re out of luck, unless you qualify for an exception to the one-year rule.
Since a country designation of TPS is based on extraordinary circumstances, this may assist beneficiaries seeking permanent residence through asylum. Another possibility is that circumstances may have changed, and the home country’s conditions have grown worse since the TPS recipient initially arrived in the United States.
4. Violence Against Women Act
– Have you been a victim of domestic violence? –
Although this program is named the Violence Against Women Act, it also applies to children and males.
If you have been a victim of physical or psychological abuse, and your spouse (or parent) is a citizen and permanent resident of the United States, you may qualify to file a VAWA self-petition (without any family sponsor).
If your petition is granted, you’re on track to win permanent residency.
Even though it’s deemed a self-petition, you may want to consult a green card attorney to help you determine the strength of your claim.
As noted above, you can file a VAWA application, even after you have been placed in deportation proceedings at immigration court – and in some aspects, your chances of winning are greater in “domestic violence cancellation of removal” hearings before a judge.
5. U Visas
– Have you been a victim of a crime that caused you great harm? –
You may be eligible for a U Visa if you have:
- Been a victim of a crime that occurred in the United States
- Suffered substantial physical or mental pain as a result of the crime
- Been helpful or will be helpful to law enforcement officials in prosecuting the wrong-doer
If you are granted a U Visa, you will be able to stay in the United States lawfully for a temporary period of time.
After three years, you are eligible to apply for a green card.
Red Flag Issues: Whatever pathway you take, your immigration history will play a critical role. You need to be alert to certain issues which can torpedo your application, no matter how long ago they occurred.
In general, if you have (a) good moral character, (b) never been deported, (b) never been convicted of an aggravated felony or other disqualifying crimes, (d) never used fraudulent documents or false information to gain immigration benefits, you should be able to apply for green card benefits under any of the eight programs outlined in this article.
6. T Visas
– Have you been subject to human trafficking in the U.S.? –
Human trafficking is when someone is forced, threatened with, or tricked into forced labor or sexual exploitation.
For instance, thousands of girls and women are trafficking victims and forced to engage in prostitution or treated as domestic slaves. Trafficking boys and men are often forced into construction, agriculture, or factory work.
To qualify for a T Visa, you have to prove that you have been subject to human trafficking in the United States, you would suffer extreme harm if you were deported, and, if you’re an adult, you must be willing to assist law enforcement authorities in the prosecution of the trafficking perpetrators.
As with a U Visa, if you are granted a T Visa, you will be able to temporarily remain in the U.S. lawfully. After a certain period of time, you might also be able to apply for and win a green card.
– Have you lived in the U.S. since January 1, 1972? –
Registry is one of those immigration programs rarely mentioned in TPS circles.
It’s often overlooked as a potential relief from deportation and pathway to permanent residency, despite its relatively simple requirements.
Yet, if you have lived in the United States since January 1, 1972, and you have been a person of good moral character, you are entitled to permanent resident status under the registry statute.
Although not many TPS beneficiaries will meet the 1972 cut-off date, for those who can, this is a pathway to a green card which should be fully explored.
– Are you from Nicaragua or El Salvador? –
If you’re from Nicaragua or El Salvador, and you have been living in the U.S. since the early 1990s, you may qualify for an another older immigration program known as The Nicaraguan Adjustment and Central American Relief Act (NACARA).
Here are the basic rules.
If you are from Nicaragua, you must have entered the U.S. before December 1, 1995, and filed an application for immigration benefits before April 1, 2000.
If you are from El Salvador, you must have applied for asylum before April 1, 1990, or you must have entered the U.S. before September 19, 1990 and filed an application for special benefits under the American Baptist Churches v. Thornburgh (ABC) settlement agreement by October 31, 1991.
Conclusion: Tread Forward Carefully
There is no right or wrong path to winning permanent resident status.
Because your situation is not the same as your cousin’s situation, the path you choose to seek the right to live and work legally in the U.S. may be entirely different from hers.
And there is no need to choose between two or more potential programs which can help you and your family. If you qualify for three programs, apply for all three.
There is no need to choose between two or more potential programs which can help you and your family. If you qualify for three programs, apply for all three.Click to tweet
However, none of the pathways are easy to navigate.
Each of them have strict requirements that must be met before you are awarded a grant of permanent residency and allowed to continue living in the United States.
The eight questions asked above will help guide you to the specific programs you should explore further.
- Did you enter the U.S. without permission?
- Would your deportation cause extreme difficulties for close family members?
- Are you afraid to return to your home country?
- Have you been a victim of domestic violence?
- Have you been a victim of a crime that caused you great harm?
- Have you been subject to human trafficking in the U.S.?
- Have you lived in the U.S. since January 1, 1972?
- Are you from Nicaragua or El Salvador?
Figuring out what pathways offer you the best opportunities is only the first step.
The second step is doing the work to succeed.