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Is it appropriate for USCIS to apply its new July 1, 2022 policy in considering whether a TPS authorized travel is as an inspection and admission?

By October 13, 2022Immigration
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Even if a beneficiary of Temporary Protected Status, “TPS” meets the initial requirements to qualify for retroactive application of the current United States Citizenship and Immigration Service, “USCIS” policy implemented in 2022, a reviewing officer must still determine whether retroactive application of the new policy is appropriate in each individual case. We discussed the new July 1, 2022 policy interpretation here.

There may be rare instances where an adjustment applicant may still benefit from prior policies allowing for adjustment of status based on TPS authorized parole travel. For instance, an adjustment applicant may have traveled during the period from February 25, 2016 until August 20, 2020 where the applicant’s parole travel was proper for adjustment of status. Here retroactive application of the new policy could jeopardize this applicant’s eligibility for adjustment of status. We discussed eligibility for adjustment of status here.

The criteria to determine appropriate application of the current July 1st, 2022 policy is substantially based on law articulated in the federal district court decision, Retail, Wholesale and Department Store Union AFL-CIO v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972)

The factors articulated in federal district court case to be considered by USCIS include:

  • Whether the effect of TPS-authorized travel has previously been considered.
  • Whether USCIS’s new policy change is a change from USCIS prior practice and guidance.
  • The extent to which the adjustment of status applicant to whom the new policy would apply relied on the former rule.
  • The burden that the retroactive application of the policy would impose on the adjustment of status applicant.
  • Whether there is a strong statutory interest in applying the best interpretation of the statute.

Generally, these factors allow a reviewing officer to determine whether the applicant relied on past policy or practice where retroactive application of the new policy would negatively affect or otherwise burden the applicant due to such reliance.

However, since it will be the rare case where retroactive application of the new policy will burden the applicant, USICS has indicated that In most instances, when the officer determines that an applicant meets all other eligibility requirements and merits adjustment of status in the exercise of discretion, it would be appropriate for the officer, on a case-by-case basis, to deem the prior parole to be an admission.

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