Adjustment of Status Available Only For Inspected And Admitted Aliens

by Emmanuel S. Tipon, Esq.

A unanimous Supreme Court ruled on June 7, 2021 that adjustment of status from nonimmigrant to lawful permanent resident (LPR) or “green card holder”  is available only to aliens who have been “inspected and admitted or paroled into the United States” in accordance with the “plain terms” of Section 245 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1255, and affirmed the denial of an application for adjustment of status of an alien who entered this country illegally. Sanchez v. Mayorkas, No. 20-315, June 7, 2021.

In 1997, Sanchez entered the United States from El Salvador unlawfully – that is without “inspection and authorization by an immigration officer.” He worked without legal authorization. In 2001, because of unsafe living conditions in El Salvador resulting from a series of devastating earthquakes, the U.S. government granted to citizens of El Salvador in this country, including Sanchez, Temporary Protected Status (TPS), entitling him to stay and work in the United States for as long as those conditions persisted. In 2014, Sanchez wished to become a lawful permanent resident of the United States and applied for adjustment of status under 8 U.S.C. § 1255.

The U.S. Citizenship and Immigration Services (USCIS) denied Sanchez’s application on the ground that Sanchez had not been lawfully admitted to the United States. Sanchez sued in U.S. District Court challenging the decision. The District Court granted summary judgment in his favor, relying on the statutory mandate that a TPS recipient “shall be considered as” having “lawful status as a nonimmigrant” for purposes of applying to become an LPR. The district court said that this provision required treating TPS recipients “as though [they] had been ‘inspected and admitted.’”

But the Court of Appeals, Third Circuit reversed, holding that “a grant of TPS does not constitute an ‘admission’ into the United States.” Sanchez v. Secretary, 967 F.3d 242, 252 (2020). The court observed that “admission” and “status” are separate concepts and providing a person with nonimmigrant status does not mean admitting him.

The U.S. Supreme Court affirmed the Third Circuit, holding that a TPS recipient who entered the country unlawfully cannot become an LPR. The Supreme Court explained that “lawful status” and “admission” are distinct concepts in immigration law. Establishing one does not necessarily establish the other. For example, a student who was admitted to the United States lawfully on a student visa but overstayed is no longer in “lawful status”. On the other hand, a foreign national can be in lawful status but not admitted, like an alien who entered the country unlawfully but then received asylum.

The TPS program gives foreign nationals nonimmigrant status, but it does not admit them. So, the conferral of TPS does not make an unlawful entrant (like Sanchez) eligible under 8 U.S.C. § 1255 for adjustment to LPR status. § 1255 according to its plain terms prevents Sanchez from becoming an LPR. § 1255 requires an LPR applicant to have entered the country “lawfully” with “inspection” – that is, to have been “admitted”.

OBSERVATION: The Supreme Court decision cites a bill in Congress providing that TPS recipients shall be considered “as having been inspected and admitted into the United States”.  American Dream and Promise Act of 2021, H.R. 6, 117th Cong., 1st Sess., § 203, p. 29, introduced March 3, 2021. The filing of such a bill is evidence that TPS recipients are not considered at the present time as having been “admitted” into the United States.

RECOMMENDATION. An alien applying for adjustment of status should write a cover letter stating:

“Applicant meets the requirements of 8 U.S.C. § 1255 for adjustment of status because:

1. Applicant was inspected and admitted into the United States on [specify date] at [port of entry] on a [specify visa classification] visa.

2. Applicant made an application for adjustment of status under Form I-485 which is attached to this letter.

3. Applicant is eligible to receive an immigrant visa and is admissible to the United States for permanent residence as shown in applicant’s Form I-485 and supporting documents, and

4. An immigrant visa is immediately available to Applicant at the time of filing of this application for adjustment of status [Explain why an immigrant visa is available, such as, since Applicant is an immediate relative (spouse) of a United States citizen whom Applicant married on [specify date], and that their marriage is bona fide.]

The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute an attorney-client relationship.

ATTY. EMMANUEL SAMONTE TIPON was a Fulbright and Smith-Mundt scholar at Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, the U.S. District Court in California (N.D.), the courts in New York and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson-Reuters and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the wittiest, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Follow The Tipon Report on YouTube. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: filamlaw@yahoo.com. Website: https://www.tiponlaw.com.

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