Introduction
On December 20, 2019, the United States Citizenship and Immigration Services (USCIS) issued a policy alert titled “Effect of Travel Abroad by Temporary Protected Status Beneficiaries with Final Orders of Removal” [PDF version]. The alert points readers to changes to the USCIS’s Policy Manual (PM). The new guidance clarifies that when a TPS beneficiary who has an unexecuted, final order of removal or who is in the midst of removal proceedings departs and lawfully returns in accordance with the terms of a grant of advance parole, he or she “remains in the same exact immigration status and circumstances as when he or she left the United States.” In this post, we will examine the updates to the USCIS PM and what it means going forward.
New Guidance
The USCIS’s new guidance on advance parole for TPS beneficiaries with final orders of removal is found in 7 USCIS-PM A.3(D) at n.15 [PDF version]. The USCIS addresses advance parole for TPS beneficiaries specifically at footnote 15 of 7 USCIS-PM A.3.
TPS beneficiaries must obtain prior authorization from USCIS in order to depart the United States and return in the same immigration status. This authorization comes in the form of an advance parole document issued in accordance with regulations at 8 CFR 244.15(a). When a TPS beneficiary is granted an advance parole document, departs the United States, and returns in accordance with the terms of the advance parole, the beneficiary “shall be inspected and admitted in the same immigration status the alien had at the time of departure.” The only exception noted by the USCIS is where “the alien is determined to be inadmissible on certain criminal and security bars (TPS) bars listed in INA 244(c)(2)(A)(iii). In cases where those bars do not apply, however, “the TPS beneficiary, upon return to the United States, resumes the exact same immigration status and circumstances as when he or she left the United States.”
The revised PM guidance now addresses the following factual scenario:
The TPS beneficiary had an outstanding, unexecuted final order of removal at the time of his or her departure on advance parole;
The TPS beneficiary returns to the United States in accordance with the terms of the advance parole.
The USCIS explains that in this scenario, the beneficiary, “upon lawful return, remains a TPS beneficiary who continues to have an outstanding, unexecuted final order of removal.”
The USCIS provides similar guidance for TPS beneficiaries in the midst of removal proceedings at the time of departure and return on advance parole. Provided that the beneficiary departed and lawfully returned in accordance with the terms of advance parole, he or she would “remain[] a TPS beneficiary in removal proceedings upon lawful return, unless those proceedings have been otherwise terminated.”
Conclusion
The guidance makes clear that a TPS beneficiary who departs and lawfully returns under a grant of advance parole returns in the exact same status and circumstances as when he or she departed. The only exception is if the Department of Homeland Security (DHS) determines that the TPS beneficiary is subject to a TPS bar under INA 244(c)(2)(A)(iii). Since neither having an outstanding final order of removal or being in the midst of removal proceedings is listed in INA 244(c)(2)(A)(iii), departure and lawful return under a grant of advance parole neither worsens nor betters the TPS beneficiary’s immigration status and circumstances.
TPS beneficiaries who have questions about their ability to travel or any other issues relating to their immigration circumstances should consult with an experienced immigration attorney for a case-specific evaluation.
