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 Out of status TPS holder applying GC through work
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Posted on 12-11-15 1:01 PM     Reply [Subscribe]
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I got the TPS on Sept. and my owner is trying to do labor certification for me. Will my previous status create some problem?
 
collegefootballrocks
Posted on 12-11-15 1:11 PM     [Snapshot: 22]     Reply [Subscribe]
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Most probably "No" but just be careful...consult with good lawyer..see below..

Temporary Protected Status (TPS) was enacted in 1990 to apply to non-resident foreigners wishing to avoid returning to their homeland because of civil strife or effects of a natural disaster of "extraordinary and temporary conditions." Those foreigners who were to benefit from this Temporary Protected Status (TPS) were people not seeking permanent U.S. residence, such as asylum applicants.
 
Posted on 12-11-15 1:13 PM     [Snapshot: 24]     Reply [Subscribe]
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Yes. While adjsuting status you may have to deal with it. May be you have to go back to home country and adjust there or may be provide reasons such as medical financial issues that led to become out of status. Talk with attorney.
 
Posted on 12-11-15 1:25 PM     [Snapshot: 39]     Reply [Subscribe]
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From your question, it looks like you are filing for an employment based green card? If so, being out of status in the past will cause an issue. How many months you were out of status? If it is less than 180 days, you can leave the US and re-enter. Then, you will be pardoned. If it is more than 180 days, you aren't eligible for employment based green card. If it is through marriage/asylum, etc. then your past out of status won't be an issue.
 
Posted on 12-11-15 2:08 PM     [Snapshot: 107]     Reply [Subscribe]
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But TPS grants people with no status with certain kind of status that allows them for AOS in US. Only requirement is you need to have entered US legally.
http://www.immigrationpolicy.org/litigation/temporary-protected-status-tps-and-adjustment-status
https://cliniclegal.org/resources/articles-clinic/sixth-circuit-finds-tps-creates-eligibility-adjustment-under-section-245a
 
Posted on 12-11-15 2:30 PM     [Snapshot: 141]     Reply [Subscribe]
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My understanding is that once you are approved for TPS, you won't be considered as out of status anymore, but TPS approval doesn't pardon the past out of status itself. I could be wrong though.
 
Posted on 12-11-15 8:37 PM     [Snapshot: 313]     Reply [Subscribe]
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First of all there is difference between "out of status" and Unlawful presence. These two are related though.

Out of status - You fell out of your status - i.e. you stopped going to school (f1) or your employer revoked your h1. you are out of status from the day you loose your status

Unlawful presence - You stayed in USA, beyond the authorization period. Mostly, it is determined while trying to do an adjustment of status

Long story short - "Any one who failed to maintain a lawful status after entry, is ineligible for adjustment of status. The person must go back to their home country and appear for an interview. Remember, there is also a ban rule which applies when you enter in the USA.If you have  more than 180 days of unlawful presence then you will be banned for 3 yrs to enter USA. if it is more than 1 year then it is 10 years. However, some exception applies.

While filing for the GC, it applies to everyone whether it is employment based, Marriage or Aslyum. I am assuming the person entered in the USA legally. 

Adjustment of Status

Person must do an adjustment of status while filing for the green card.

Asylum

-- Asylum seeker can adjust his / her status without going back to home country (person can't go to home country) if he/she granted asylum So this is one exception.

Marriage Based

If spouse is Citizen

-- Any unlawful presence / out of status would be forgiven and the person will be able to adjust his / her status in USA.

If spouse is Green Card Holder

--- The person must go back and appear for an interview. As per the current rule, that person can not apply for any waiver (extreme difficulties - financial / medical) either . However, currently there is a proposal to grant a waiver for the spouse of green card holder. (http://www.uscis.gov/news/alerts/uscis-seeks-comments-proposed-expansion-eligibility-provisional-unlawful-presence-waivers)

Employment Based
--- The person must go back and appear for an interview

I know, you might not like it, but if none of the exception applies to you, then most probably , you will not be able to adjust your status means no Green card. Most likely, your change of status might be denied because of your unlawful presence / out of status (it counts even if it is just one day).

if you want to know more about it please read it here. above information is extracted from this document

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF


This is not a lawyer advice. this is just an opinion. Please consult a lawyer if you want to know more.


Good Luck.


Last edited: 11-Dec-15 08:39 PM

 
Posted on 12-12-15 12:08 AM     [Snapshot: 402]     Reply [Subscribe]
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Last edited: 05-Feb-16 01:52 PM

 
Posted on 12-12-15 1:19 PM     [Snapshot: 553]     Reply [Subscribe]
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@Sakumaku. No I don't think your presence is counted as unlawful presence, and it is clearly written so in this document. http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF 

  Page no . 7 

Aliens present in the unlawful status who do not Accrue unlawful presence

Alien (Person's) Pending Application for Temporary Protected Status (TPS)

Means most probably, your unlawful status will not be counted as unlawful presence. However, please remember that you still have unlawful status, you might have to explain it later if you have to do an adjustment of status.


This is not a lawyer advice. this is just an opinion. Please consult a lawyer if you want to know more.


Good Luck.

Last edited: 12-Dec-15 01:22 PM

 
Posted on 12-14-15 9:19 AM     [Snapshot: 770]     Reply [Subscribe]
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Last edited: 05-Feb-16 01:52 PM

 


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