Q. I would like to know if a person who is a United States citizen and married to someone with Temporary Protected Status (TPS) can petition for a green card for the TPS holder. The person on TPS entered the U.S.A. without inspection. -Lilian

September 16, 2011 | Family Petition, Temporary Protected Status

A.  Hi Lilian,

A U.S. citizen can petition for his/her noncitizen spouse and other Immediate Relatives.  One common concern is whether the spouse/immediate relative can interview in the United States, a process called “adjustment of status.”  For a spouse of a U.S. citizen or other immediate relative of a U.S. citizen to adjust status, the person must have been “inspected and admitted” at the time of entry.

The person you asked about entered without inspection.  That person may be able to interview here, if he or she qualifies under the “245(i)” law.  For a person to qualify under the “245(i)” law, he or she must have had a family or employment case started for them prior to April 30, 2001.   If the case was started between January 15, 1998, and April 30, 2001, the person must have been in the United States on December 21, 2000.  Note that derivative family members of the person (spouse and unmarried children under 21) would also be covered under the 245(i) law.

If the person you asked about doesn’t qualify under the “245(i)” law, the person would need to leave and come back and be inspected upon their return.  Note, however, that there are risks associated with traveling and that one should always consult an immigration attorney before departing the United States.

The most common risk of traveling is triggering the “unlawful presence” bar.  It applies to individuals who travel abroad after having been here unlawfully for a certain period of time.  Unlawful presence bars are penalties that won’t allow a person to return to the Unites States for a number of years.  For those who have been here unlawfully for more than 180 days but less than one year, the bar is three years.  For those who have been here unlawfully for more than one year, the bar is ten years.  Remember, the bar is only triggered after one actually leaves the United States.

A person with TPS who wants to travel must request “advanced parole” before departing the United States.  This is permission from USCIS to travel abroad.  Receiving an advanced parole document does not guarantee one’s re-entry into the United States.  But note that for travelers who triggered the unlawful presence bar when they left the United States, it is Customs and Border Protection’s general practice to admit these individuals with advance parole back into the country.

TPS holders applying for adjustment of status who triggered the unlawful presence bar would need a USCIS waiver to get permanent residence.  To get the waiver, the applicant must prove extreme hardship to a U.S. citizen or permanent resident spouse or parent.  Note that emotional hardship caused by severing family and community ties is a common result of deportation and does not necessarily constitute extreme hardship.

Many readers will be asking:  Should TPS holders who entered illegally and are not eligible for “245(i)” take a chance by traveling and then applying for adjustment of status?  TPS holders should check with an immigration attorney before applying.  But for some, it may be possible.

Immediate relatives

The immediate relative category includes these relatives of a U.S. citizen:  spouse, unmarried child (under age 21), and parent of a U.S. Citizen child age 21 or older.