This column is sponsored by the Law Office of James Montana PLLC. All questions regarding this should be directed to James Montana, Esq., Doran Schmin, Esq., and Laura Lorenzo, practicing attorneys at the law firm of James Montana plc, an immigration-focused law firm located in Arlington, Virginia. The legal information provided here is general in nature. If you want legal advice, call us to get an appointment.
In immigration law, government sometimes doesn’t mean what it says or means what it means.
Imagine that you are a (highly documented) immigrant in the United States. You have a TPS work permit, valid for two years, and you have renewed it since 1992.
Your children are US citizens. As you know, since you are a loyal reader of the Liberty Act, you cannot travel without permission. So, you apply to the U.S. Department of Homeland Security for permission to leave the United States — for a travel permit, technically called “pre-conditional release” — and receive your permit in the mail. You leave the United States, visit your family for two weeks in your home country, and then return to Dallas. Submit your travel authorization to the Customs and Border Protection office. The CBP inspector smiles and says, “Welcome home!”
Now, a test question: Have you been “accepted” in the United States by the government?
the answer no It’s fresh, tidy, newsworthy, and weed-proof, so it’s in our wheelhouse here at Statutes of Liberty. Here’s how it works:
Under our immigration laws, there are two broad categories of people entering the United States – people who enter with inspectionpeople entering without examination. “With inspection” means that you present yourself at the port of entry and request entry; “Without inspection” means that you crossed the border illegally.
In order to apply for a green card in the United States, with rare exceptions, you must prove that you are accepted by inspection. This means that for most people who cross the border illegally, it is very difficult to apply for a green card. (This also means that people who enter by inspection, on a visitor visa, and stay long afterwards are treated very differently from border-crossers, but that’s a topic for another day.)
Now, consider our (highly documented) immigrant from our initial story. He applied for and received TPS in 1992, and has duly renewed it since then. But before that, he entered the United States without inspection, crossing the border in 1989. This puts him in an interesting position for future travel. When he leaves the United States with an Advance Conditional Travel Authorization, granted by the United States Government, and then re-enters, is he “inspected” upon re-admission or not?
The answer to this question affects his or her ability to apply for a green card. If he entered with the inspection, he can apply for a green card (in some circumstances); If he enters without a screening, he cannot apply for a green card (in almost all circumstances).
For thirty years, from 1991 to the present, the US government has held the position that TPS holders who entered with advance parole entered by “inspected.” But on August 20, 2020, the government suddenly changed its mind. Concluding that granting permission to travel under TPS simply places travelers in the same legal status they were in when they departed, USCIS has determined, henceforth, that TPS recipients traveling with advance parole are not admitted to the inspection.
However, TPS recipients who traveled before August 20, 2020 they were They admitted to the inspection, because they traveled on the wrong policy now assumed.
So, whether you are accepted with the screening now depends on whether you entered before or after August 20, 2020. (Some people entered before and after him! that they Applying for a green card? The answer is not clear!)
Faced with this unusual chaos, the Northwest Immigrant Rights Project has filed a lawsuit against the US government, seeking a proclamation ruling that would overturn the 2020 policy. That lawsuit is now making its way through the federal court. Meanwhile, USCIS is seeking to dismiss the lawsuit because it is “actively reconsidering” the 2020 policy, which was, in itself, a reconsideration of 30 years of previous practice.
Some long-suffering federal judges – perhaps nine of them – will eventually solve this. Until then, immigrants and their attorneys have to discover a very complex set of laws and apply them to the messy realities of ordinary life.
As always, any ideas or questions are welcome and we will do our best to respond.