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Reference Document - EB-1A / EB-2 NIW

Updated: Author: Alina Kanametova

Reference Guides 25 pages Anonymized Access on request

A precedential AAO decision on whether Temporary Protected Status helps an applicant adjust status under INA section 245. It reviews a long TPS history, the…

EB-1A EB-2 NIW Petition

About this document

A precedential AAO decision on whether Temporary Protected Status helps an applicant adjust status under INA section 245. It reviews a long TPS history, the applicant's unlawful entry, later TPS grant, and denial of adjustment by USCIS. The decision holds that TPS only preserves lawful nonimmigrant status during the TPS period and does not count as admission or cure earlier unlawful status.

Key points

  • Applicant entered without inspection and admission or parole, later received TPS, and filed Form I-485 based on a family-based visa classification.
  • USCIS denied adjustment because the applicant was never inspected and admitted or paroled, and had not continuously maintained lawful status.
  • The issue is whether TPS under section 244(f)(4) counts as admission under section 245(a) or excuses the section 245(c)(2) bar.
  • The decision cites INS and USCIS guidance saying TPS does not itself constitute admission into the United States.
  • It reviews Sixth, Ninth, and Eleventh Circuit cases that split on whether TPS can satisfy the admission requirement.
  • The conclusion is that section 244(f)(4) only deems TPS recipients in lawful nonimmigrant status during the TPS period.
  • That protection preserves status for those whose prior lawful nonimmigrant status expired while TPS was in effect.
  • The decision affirms the Director and denies the adjustment application.

When it helps

A legal analysis for an adjustment-of-status case under INA section 245, focused on whether TPS can satisfy the admission requirement or only preserve nonimmigrant status. It also serves as authority on how the agency reads section 244(f)(4) in relation to the section 245(c)(2) bar.

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Source: Community (anonymized). The material opens on the site. Reference material, not legal advice.

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