TPS and AOS (split)

[Chancy 6,241]

17 minutes ago, Future Us Citizen said:

I been on tps for 10 years now

 

Thank you for sharing information about your background.

 

Now that you've clarified that you're on TPS, I'll look forward to the insights from members knowledgeable on the subject, especially @HRQX

 

[Crazy Cat 41,845]

7 minutes ago, Chancy said:

 

Thank you for sharing information about your background.

 

Now that you've clarified that you're on TPS, I'll look forward to the insights from members knowledgeable on the subject, especially @HRQX

 

June 8, 2021

https://www.nolo.com/legal-update/court-says-tps-holders-are-lawful-entrants-can-apply-adjust-status-based-marriage.html

 

"Also, TPS holders are allowed to depart the U.S. with a grant of Advance Parole, then return. But is that a lawful entry? For a time, some courts were saying yes. But the TPS holder in the Supreme Court's recent decision had also entered on Advance Parole, and it didn't help him. The Court found that entering on an Advance Parole document was not a "lawful admission" as would be required under the law in order to qualify to use the adjustment of status process. (See 8 U.S.C. § 1255(k).)"

Edited June 17, 2021 by Lucky Cat

[Chancy 6,241]

17 minutes ago, Lucky Cat said:

But the TPS holder in the Supreme Court's recent decision had also entered on Advance Parole, and it didn't help him. The Court found that entering on an Advance Parole document was not a "lawful admission" as would be required under the law in order to qualify to use the adjustment of status process.

 

I thought of that news update too!  So we won't duplicate the discussion, linking the existing thread on that topic here --

 

 

[HRQX 4,145]

42 minutes ago, Lucky Cat said:

(See 8 U.S.C. § 1255(k).)

In the SCOTUS case, Jose Santos Sanchez was adjusting based on an employment-based petition. Thus why the stricter 8 U.S.C. § 1255(k) "Inapplicability of certain provisions for certain employment-based immigrants" section applies. https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf "footnote 1: Section 1255(k)’s requirement of a lawful admission, unlike §1255(a)’s, applies even if the nonimmigrant has been paroled into the United States—that is, received temporary permission to enter the country “for urgent humanitarian reasons or significant public benefit.” 8 U. S. C. §1182(d)(5)(A). So a nonimmigrant who has worked without authorization cannot rely on his parolee status (if any) to become an LPR."

 

The Advance Parole entry loophole exists if the AP entry occurred prior to August 20, 2020 (https://www.uscis.gov/news/news-releases/uscis-adopts-aao-decision-on-tps-and-authorized-travel) but the caveat is that it only works for: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-4

• "Immediate relatives" of US citizens;
• Violence Against Women Act (VAWA)-based applicants;
• Certain physicians and their accompanying spouse and children;
• Certain G-4 international organization employees, NATO-6 employees, and their family members;
• Special immigrant juveniles; or
• Certain members of the U.S. armed forces and their spouse and children.

[Demise 1,283]

3 hours ago, Lucky Cat said:

June 8, 2021

https://www.nolo.com/legal-update/court-says-tps-holders-are-lawful-entrants-can-apply-adjust-status-based-marriage.html

 

"Also, TPS holders are allowed to depart the U.S. with a grant of Advance Parole, then return. But is that a lawful entry? For a time, some courts were saying yes. But the TPS holder in the Supreme Court's recent decision had also entered on Advance Parole, and it didn't help him. The Court found that entering on an Advance Parole document was not a "lawful admission" as would be required under the law in order to qualify to use the adjustment of status process. (See 8 U.S.C. § 1255(k).)"

This deals with 245(k), which is basically a leniency that you get to adjust via work (EB1-EB3, and EB4 Religious Worker) if you didn't violate your status for more than 180 days since last admission, parole is not admission for purposes of 245(k) and BIA held that repeatedly. So for example you're on F-1, you worked illegally for some irrelevant period of time, you leave, you re-enter, you work illegally for further 90 days and file for AOS in EB-3. 245(k) will let you adjust in a case like this.

 

The main question was: is an initial grant of TPS since it is a concrete lawful status an "admission" for purposes of 245(a) and 245(k)? USCIS said no. BIA said no. Multiple circuits said no. 6th and 9th circuit said yes. We've got a circuit split, matter goes to Supreme Court which said no.

 

Now to actually answer the question of @Future Us Citizen. You pretty much can't adjust as a spouse of an LPR (F2A) unless you are covered under 245(i). If you are covered under 245(i) meaning that you or your parent (while you were unmarried and under 21) or spouse at the time was petitioned on or before April 30th 2001, and the primary beneficiary was in US on December 21st 2000 then you can pay the fine and adjust via any means. The problem here rests primarily in INA 245(c) which are things that do not make you inadmissible but they make you ineligible for AOS. Otherwise you'll need an I-601A.

 

Moreover, even if you were to wait until spouse naturalizes the biggest problem is Matter of Z-R-Z-C- (AAO, 2020), where the  AAO ruled that entry on advance parole by a TPS holder does not constitute parole for purposes of 245(a). The question whether it applies to other advance parole travelers (e.g. DACA) is still up in the air. I've been browsing DreamAct.info and there's a few people willing to yolo it and be the test case.

 

Now could you fight it? Sure. Apply, get denied, end up in removal proceedings, get denied again, and bring the matter to the BIA, and probably even further like to the Circuit Court or the Supreme Court, and be the namesake of a precedent case. But honestly you're better off just doing the I-601A.

 

 

Edited June 17, 2021 by Demise

[HRQX 4,145]

6 hours ago, Future Us Citizen said:

I been on tps for 10 years now...

How old were you when the initial Form I-821 for TPS was approved?

[SusieQQQ 11,586]

10 hours ago, Future Us Citizen said:

I went to go visit my father with a advance parole...Got paroled in....Thought I share it with y'all...I adjusted under 245a INA

So you have a green card already?

Edited June 18, 2021 by SusieQQQ

[SusieQQQ 11,586]

8 hours ago, Future Us Citizen said:

2016- Met my now lpr spouse, went to see a lawyer on how to start processing...She told me first I would need to get a legal entry,( this advice change the game)

But any past violation is a bar to adjustment for F2A. From the manual, section F in the link

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2

 

All entries and time periods spent in the United States (departure and return does not remove the ineligibility)

 

 

——

from your prior posts, you seem to assume your i485 being accepted and AP issued means you will succeed. If that was the case, no-one would ever be denied at interview. It is not the job of the lockbox to assess your entire history. What they saw was that on the face of it, having a LPR spouse and with F2A current makes you eligible for adjustment. That’s it. It is the IO who will assess your history and actually decide whether or not you are eligible. I agree you are better off waiting for your spouse to naturalize as these bars are overlooked for spouses of citizens. They are not overlooked for F2A.

 

 

 

Edited June 18, 2021 by SusieQQQ

[Future Us Citizen 1]

1 hour ago, SusieQQQ said:

But any past violation is a bar to adjustment for F2A. From the manual, section F in the link

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2

 

All entries and time periods spent in the United States (departure and return does not remove the ineligibility)

 

 

——

from your prior posts, you seem to assume your i485 being accepted and AP issued means you will succeed. If that was the case, no-one would ever be denied at interview. It is not the job of the lockbox to assess your entire history. What they saw was that on the face of it, having a LPR spouse and with F2A current makes you eligible for adjustment. That’s it. It is the IO who will assess your history and actually decide whether or not you are eligible. I agree you are better off waiting for your spouse to naturalize as these bars are overlooked for spouses of citizens. They are not overlooked for F2A.

 

 

 

 

1 hour ago, SusieQQQ said:

But any past violation is a bar to adjustment for F2A. From the manual, section F in the link

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2

 

All entries and time periods spent in the United States (departure and return does not remove the ineligibility)

 

 

——

from your prior posts, you seem to assume your i485 being accepted and AP issued means you will succeed. If that was the case, no-one would ever be denied at interview. It is not the job of the lockbox to assess your entire history. What they saw was that on the face of it, having a LPR spouse and with F2A current makes you eligible for adjustment. That’s it. It is the IO who will assess your history and actually decide whether or not you are eligible. I agree you are better off waiting for your spouse to naturalize as these bars are overlooked for spouses of citizens. They are not overlooked for F2A.

 

 

 

We don't want to confused other people much longer on this thread...cause I read a whole lot of things, I couldnt respond,I'm free now.., but will make this message for everyonee who took the time out to respond to me, I read everyone reply and I must say,I'm confused,cause every body are saying different things, and I'm all confuse...lol...I will leave my case up to uscis..

[Future Us Citizen 1]

10 hours ago, Future Us Citizen said:

Deleted

g

 

[SusieQQQ 11,586]

34 minutes ago, Future Us Citizen said:

 

We don't want to confused other people much longer on this thread...cause I read a whole lot of things, I couldnt respond,I'm free now.., but will make this message for everyonee who took the time out to respond to me, I read everyone reply and I must say,I'm confused,cause every body are saying different things, and I'm all confuse...lol...I will leave my case up to uscis..

Actually it seems to me everyone is saying pretty much the same thing to you.

[Future Us Citizen 1]

2 minutes ago, SusieQQQ said:

Actually it seems to me everyone is saying pretty much the same thing to you.

No luv...someone told me F2A can't adjust..And a lot of people posted things they read or heard and other people posted saying that's not referring to me...lol..thats why I'm confused...My real question is who been through my situation? And from y'all understanding what wrong in my situation...Im here to learn, I'm all ears...

[SusieQQQ 11,586]

29 minutes ago, Future Us Citizen said:

No luv...someone told me F2A can't adjust..And a lot of people posted things they read or heard and other people posted saying that's not referring to me...lol..thats why I'm confused...My real question is who been through my situation? And from y'all understanding what wrong in my situation...Im here to learn, I'm all ears...

I think everyone has told you F2A can’t adjust from a violation of past status and/or past illegal entry, no? And “a lot of people” have posted the actual law/uscis manual for you to reference which proves that. Anyway, let us know how it goes after your interview. 

[HRQX 4,145]

1 hour ago, Future Us Citizen said:

And from y'all understanding what wrong in my situation...Im here to learn, I'm all ears...

Per INA 245(c)(2) there is an adjustment bar that prevents your Form I-485 from being approved: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-4

Quote

The bar to adjustment for failing to continuously maintain a lawful status since entry into the United States applies to an applicant for adjustment who has:

• Failed to maintain continuously a lawful status since their most recent entry; and

• An applicant who has ever been out of lawful status at any time since any entry.

 

The period subsequent to the Entry Without Inspection (EWI) at the age of 8 is what triggers the above referenced adjustment bar in your F2A case.

 

Has your husband already filed Form N-400 for his naturalization process?

Edited June 18, 2021 by HRQX

[Future Us Citizen 1]

7 hours ago, HRQX said:

Per INA 245(c)(2) there is an adjustment bar that prevents your Form I-485 from being approved: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-4

 

The period subsequent to the Entry Without Inspection (EWI) at the age of 8 is what triggers the above referenced adjustment bar in your F2A case.

 

Has your husband already filed Form N-400 for his naturalization process?

Yes he waiting on oath...And I'm shock to why 2 different lawyers didn't say I was not qualify under this INA, because I believe I remembered one saying, "something about anything before 18 is not considered unlawful" 😣 Don't remember exactly the words in her immigration terms. I had consultation with 2 lawyers and not anyone of them told me this...wow!!! They both told me just make sure my current status never lapse or expired, that's it...