Date AnnouncedDec. 20, 2019
USCIS issues policy alert, purporting to "clarify" that TPS beneficiaries who depart and return to the United States based on authorized travel (advance parole) remain in the same immigration status and circumstances as when they left the United States. The guidance further states that those TPS beneficiaries with final removal orders at the time of departure remain TPS beneficiaries with final orders upon lawful return and those beneficiaries in removal proceedings remain TPS beneficiaries in removal proceedings upon lawful return. This policy alert was issued while Ken Cuccinelli purported to serve as Acting USCIS Director and bears letterhead indicating that it is issued by the USCIS Office of the Director.
[ID #118]View Policy Document
Subsequent ActionAugust 26, 2020
CARECEN and other groups sue USCIS, alleging that this policy alert (which the agency characterizes as a a mere "clarif[ication]") effectively creates a new rule for TPS beneficiaries, changing the legal effect of traveling with prior USCIS consent. The plaintiffs raise arguments under the HSA and FVRA, arguing that the policy was unlawfully promulgated by Acting USCIS Director Cuccinelli. On November 12, the court denied without prejudice plaintiffs' motion for a preliminary injunction, extended filing deadlines, and ordered parties to propose a joint briefing schedule by November 23, 2020.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**CARECEN v. Cuccinelli (D.D.C. Aug. 26, 2020) - Complaint
In a 1991 General Counsel Opinion, INS made clear that a TPS holder who initially entered without inspection nevertheless would be found to satisfy INA § 245(a) if, after being granted TPS, he or she departed the United States and was permitted to return with an Advance Parole Travel Document issued pursuant to INA § 244(f)(3). The new guidance does not change the general counsel opinions, but clarifies the jurisdiction of USCIS and the immigration courts over TPS adjustment cases.INS 1991 opinions re: TPS travel