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Supreme Court poised to tackle green card path for TPS holders

A ruling could limit green cards for immigrants with Temporary Protected Status who originally entered the US illegally

An immigration activist is seen in front of the Supreme Court during a march to Constitution Avenue on May 12.
An immigration activist is seen in front of the Supreme Court during a march to Constitution Avenue on May 12. (Tom Williams/CQ Roll Call file photo)

Juvita left El Salvador and came to the U.S. without authorization 25 years ago, hoping for safety and better opportunities. 

After years without legal status, the California resident became one of thousands of Salvadoran citizens to be granted temporary immigration protections in 2001 under a program to shield immigrants from certain countries in crisis. 

And in April, she finally got her green card, giving her legal stability. Following two decades living renewal-to-renewal, subject to the whims of political administrations, she’s now on track to becoming an American citizen. 

However, others hoping to similarly become permanent residents like Juvita, whose full name is being withheld to protect her immigration status, may not be so fortunate. 

The Supreme Court is currently considering a case over how certain immigrants who originally entered the country unlawfully but were later granted Temporary Protected Status can seek permanent residency. TPS provides people from designated countries suffering from civil conflict or natural disasters humanitarian protections. It provides work permits and deportation relief, but no path to permanent status.

Depending on how the justices rule, the case threatens to close a door to permanent residency available to TPS holders like Juvita in certain states — or blow it wide open nationwide.

“Immigration law is already a roller coaster,” said Camiel Becker, an immigration lawyer who represents TPS holders in permanent residency cases. “From my advocacy perspective, it’s just really, really frustrating.”

Brought by a New Jersey resident and TPS holder named Jose Santos Sanchez who hoped to get a green card through his employer, the high court case will resolve a disagreement between the lower courts on how to interpret a few words in the federal immigration statute. 

The dispute hinges on whether being granted TPS counts as an “admission” for those who initially entered the U.S. illegally and now hope to become permanent residents through relatives or employers from within the U.S. 

If the high court rules it does, many more TPS holders across the U.S. would become eligible to become permanent residents from within the U.S., including those with companies willing to sponsor their green cards and those married to American citizens, said Mary Kenney, deputy director of the National Immigration Litigation Alliance.

However, during oral arguments in April, several justices appeared skeptical of that argument. Chief Justice John G. Roberts remarked at one point he was “struck” by how the Justice Department, which inherited the case from the Trump administration, “undersold” its position. 

If the justices instead side with the federal government, and conclude that a grant of TPS does not count as a legal admission, it will shut off a key pipeline for some TPS holders living in states overseen by circuit courts that previously ruled TPS grants are considered admissions. 

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TPS holders with employers willing to sponsor them, like Santos Sanchez, would generally be unable to become permanent residents if they previously worked in the U.S. illegally before they received the humanitarian protections.

Others eligible through immediate relatives may still be able to become green card holders, but through a more difficult process requiring them to request special permission to leave the country and apply for a green card at U.S. consulates abroad. For many, travel to their home countries may be prohibitively expensive, or unsafe. 

“The fact they were granted TPS means that there was something that happened in their home country that rendered it unsafe for them to return,” said Kenney.

Eyes on Congress

The case comes to the high court docket as Congress considers legislation to create a pathway to citizenship for TPS holders and others with temporary immigration protections, including undocumented immigrants who were brought to the U.S. as children.

That legislation passed the House in March, but has yet to be brought to the floor in the narrowly divided Senate. A Supreme Court decision further cutting paths to permanent residence for some TPS holders could set off increased pressure for congressional action. 

[House passes immigration bill to help ‘Dreamers’]

“If we lose, then we’ve got to start lobbying for Congress to act. That’s kind of where we are with it,” said Jaime Winthuysen Aparisi, one of Santos Sanchez’ lawyers. 

He described his client as the “classic example of the American dream.”

“If the Supreme Court denies his case, that’s just one more slap at the American dream,” he said. 

Anticipating the worst, Becker and other lawyers have hurried to complete pending green card cases that could be swayed by the Supreme Court’s decision. 

Becker said he also is cautioning employers considering beginning the green card process for an employee with TPS that could be upended by a high court ruling.

“As immigration lawyers, we’re mostly worried about people who are currently eligible today, who may not be eligible in the future,” he said. “We’re like rushing, assuming the worst case scenario might happen.”

Though he admits it’s unlikely, Becker also worried a Supreme Court ruling could be used to revoke permanent residency from those who gained legal status in circuit courts where a TPS grant was considered a legal admission.

However, many immigrant advocates stress that any impact of the high court case is blunted by its narrower scope: it affects only TPS holders with U.S. citizen spouses, close relatives or employers who can sponsor them for green cards. That leaves up to hundreds of thousands of others without any path forward regardless of the case’s outcome. 

“That tells you the urgency that the Congress has on their shoulders,” said Julio Perez, a Boston-based TPS holder and activist with the National TPS Alliance. 

[Bipartisan immigration talks thwarted by escalating migration]

The chance to become a permanent resident would have sweeping effects on the lives of TPS holders, who face a constant fear of losing their status in the U.S., he added.

For Juvita, getting her green card has given her a more stable future. She said in an interview in Spanish she plans to travel abroad next year and visit El Salvador to see family she has not seen in-person in 25 years. She also hopes to adopt a child.

While TPS provided her a level of protection, she called permanent residency “my security.” 

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