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Statutes of Liberty: TPS for El Salvador is Over. Can I Apply for a Green Card?

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Ending Temporary Protected Status for El Salvador, I think, was the most serious practical blow dealt by the Trump administration to Virginians. There are about 200,000 Salvadoran TPS-holders in the United States, of whom roughly 30,000 live in the D.C. metro region.

U.S. immigration officials are committed to maintaining TPS for current TPS recipients until September 9, 2019. The application window to reapply for TPS status until that date has not yet opened. Expect it to open by March 2018 at the latest.

Going back to El Salvador is neither practical nor desirable for most Salvadoran families in our community. For that reason, many of my clients have approached me for advice on how to move from TPS to lawful permanent residency – a green card, to you and me. Some TPS-holders do actually have a path to a green card.

Explaining the mechanics will require a bit of background. (For more, read this nifty guide.) For family-based cases, a foreigner must have a family member in the United States who can file a petition. United States citizen children over the age of 21 can, under some circumstances, file such petitions for their parents.

That means that Salvadoran TPS holders who have U.S. citizen children – and many do, because TPS has been the law of the land since Taylor Swift was eleven years old – may be able to file for a green card. United States citizens can also file similar petitions for their spouses.

New family petitions require proof of the family relationship. For parental relationships, you’ll need a birth certificate, and sometimes a DNA test if the government demands it. Marital relationships require a boatload of evidence of bona fide marriage. In addition, family petitioners can expect to pay about $2,000 in fees to the U.S. government, as well as fees to an attorney.

Employment authorization and travel permission are available while an application for a green card is pending, so applying for adjustment of status is an extremely attractive prospect for Salvadorans facing the end of TPS. But there are traps for the unwary attorney. Here are a few tips to help you avoid them.

  1. Verify the method of the TPS-holder’s last entry into the United States. Many TPS-holders entered “without inspection,” as immigration lawyers say, by crossing the border. Such applicants are treated quite differently from TPS-holders who came to the United States with a visa, or who later re-entered the United States with advance parole.
  2. Do not accept a late-filed birth certificate as conclusive evidence of parentage, or a marriage certificate as conclusive evidence of a bona fide marriage. The government will demand more evidence than that. It pays to prepare it in advance.
  3. Expect that your client’s work authorization may expire before your client is eligible to file for adjustment of status. A Salvadoran father whose U.S. citizen daughter turns 21 in December 2019 is going to have to live without work authorization for a few months.

Both applications for adjustment of status and asylum petitions are live options for Salvadorans, and a good immigration attorney may be able to combine the two applications in beneficial ways. Asylum applications, if successful, lead to permanent residency in the United States, and employment authorization is available while the application is pending.

I have no doubt that many Salvadorans will consider filing asylum applications now that TPS has expired. Whether it is wise to file an asylum application requires a careful analysis of the individual case, so I do not recommend applying blind.

Remember that TPS-holders are unlikely to be placed in removal proceedings en masse, so applying for asylum can hurt the applicant by saddling him with a deportation order which he otherwise would never have had.

***

Swan songs should be short: This will be my last column for ArlNow. It has been a pleasure writing for all of you, reading the comments, and rewatching Spaceballs. I would like to thank Neil Kelly particularly for his wit in coming up with the column name, Statutes of Liberty. Neil is an Arlingtonian and a brilliant, low-key real estate agent, so if you need an agent who doesn’t shout at you, use the word “bungalow” unadvisedly, or try to trick you with tiny furniture, here’s how to reach him.

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