We recently obtained green card approvals from USCIS on behalf of a client and his family. We started working on this matter in 2018 when the case had come to a dead-end, and we pulled almost all levers available to us to help Siraj and his family successfully navigate the U.S. immigration system.
Siraj is a very bright financial analyst and accountant. He and his family live in California and are citizens of Syria. Siraj, his wife, and daughter arrived in the United States with B-2 visas in the fall of 2014, fleeing serious violence in Syria, and applied for asylum affirmatively in December of 2014.
In January of 2015, Siraj applied for Temporary Protected Status (“TPS”), as the Attorney General had previously designated Syria as eligible for TPS based on extreme violence and civil war in Syria. Siraj applied for TPS, but his wife and young daughter did not. While Siraj’s application for asylum was pending before USCIS, Siraj applied for work authorization, and, in November of 2017, Siraj’s employer filed an I-140 on his behalf so that Siraj could obtain a green card for himself and his family members.
Inexplicably, in April of 2018, USCIS denied the applications for asylum and placed Siraj and his family in removal (deportation) proceedings. Additionally, USCIS still had not approved Siraj’s initial application for TPS, even though a full four years had passed. When USCIS placed Siraj and his family into deportation proceedings, Siraj contacted our office.
We immediately filed applications for TPS on behalf of Siraj’s wife and daughter. We then represented Siraj and his family at hearings before an immigration judge in Los Angeles, explaining that Siraj and his family were still waiting for USCIS to make a decision on their TPS applications and that the I-140 filed by Siraj’s employer also remained pending. Back in D.C., we contacted the USCIS Ombudsman’s office to pry Siraj’s TPS application loose. It took us another year to get USCIS to act on the TPS applications, and we threatened to file a mandamus suit against the agency for its undue delay. USCIS finally approved TPS for Siraj and his family in March of 2019.
Next, we filed for premium processing for Siraj’s pending I-140, and USCIS approved the employment-based visa petition in May of 2019. We then contacted the attorneys from DHS that represented ICE in Siraj’s deportation proceedings and convinced them to join us in a motion to dismiss the case against Siraj and his family. The immigration judge agreed to dismiss the case in July of 2019 so that we could apply for green cards before USCIS. We next filed applications for adjustment of status for Siraj and his family, but USCIS issued requests for evidence for all three family members, asking that we demonstrate that each of them had “maintained lawful nonimmigrant status” since their entries in 2014 with B-2 visas.
Legal Argument to USCIS Regarding TPS and Adjustment of Status
Ultimately we overcame USCIS’ requests for evidence and obtained green cards for Siraj and his family. But, for those interested, here comes the legalese. We based our legal argument on Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), and INA §§ 245(a) and 245(k).
Individuals that hold TPS and live in the jurisdiction of the U.S. Court of Appeals for the Sixth, Eighth, and Ninth Circuits have an open path to lawful permanent residence: a grant of TPS qualifies the individual as being “inspected and admitted” for the purposes of adjustment of status. Thus, in Ramirez v. Brown, the Ninth Circuit the court reasoned that a TPS grant confers nonimmigrant status on an individual, and an individual who obtains nonimmigrant status is “admitted” to the United States.
We argued to USCIS that because Siraj and his family live in California, which falls under the jurisdiction of the Ninth Circuit, and because USCIS had granted Siraj and his family TPS, USCIS had also “admitted” Siraj and his family to the United States. The “admissions” made Siraj and his family eligible to adjust their status under INA §§ 245(a) and 245(k).
INA § 245(a) lays out the fundamental requirements for anyone applying for adjustment of status, which includes having been “admitted” to the United States, not being “inadmissible,” and having a visa immediately available. INA § 245(c)(2) then creates barriers to adjustment of status, namely working without authorization, being in unlawful status, or failing to maintain lawful status since entry into the United States. Importantly, however, INA § 245(k) exempts an individual who would otherwise be subject to INA § 245(c)(2) from the bars if 1) the individual is the beneficiary of an I-140 petition in the EB-1, EB-2, or EB-3 category, and 2) the individual is present in the United States pursuant to a lawful admission and subsequent to such admission has not failed to maintain lawful status or engaged in unauthorized unemployment for more than 180 days. This exemption also applies to dependents of the principal I-140 beneficiary.
In its requests for evidence, USCIS argued, in effect, that Siraj and his family could not adjust status in the United States because they had not maintained lawful status from the time of their B-2 visa entries to the United States in late 2014: since entering the United States, USCIS had denied their applications for asylum, and Siraj’s wife and daughter did obtain TPS until 2019.
We successfully argued to USCIS, however, that the 2014 B-2 visa entries were immaterial because USCIS had freshly “admitted” Siraj, his wife, and daughter to the United States when the agency granted their applications for TPS. And, because Siraj had an I-140 approved on his behalf in the EB-3 category, and because Siraj, his wife, and daughter had not “failed to maintain lawful status or engaged in unauthorized unemployment for more than 180 days” since their TPS grants, they were eligible for adjustment of status under INA §§ 245(a) and 245(k). USCIS agreed and recently issued green cards to Siraj, his wife, and his young daughter.
This legal argument can help individuals who hold TPS as citizens of other countries, which can be found here, and include El Salvador, Honduras, and Nepal. It may form the basis of a new policy under the Biden administration to provide a path towards green cards for individuals who have been inside the United States without status for may years.
We are very happy with this result and look forward to Siraj and his family’s many future successes in the United States with their immigration status secured.