Employment Based (EB) Green Card Options for Individuals with TPS Status  

Many of our clients have had Temporary Protected Status (TPS) for many years, living in the United States continuously throughout that time. You can read about what TPS status and its eligibility requirements here. Our clients with TPS frequently ask us if it is possible for them to make their status in the United States permanent by applying for a green card, also known as permanent residence. The rules in place for TPS holders, their ability to travel internationally and apply for permanent residence has changed a lot over the years. This post won’t explain the history of these changes, but will focus on employment based options available today for individuals with TPS status.

Note: this post is a review only for the employment-based options for a green card. Family and humanitarian options for a green card are outside the scope of this post.

I have TPS status, can I apply directly for a green card?

No, in order to apply for your green card you must have an approved I-140 immigrant petition through your employer. Just having TPS alone does not authorize the green card process.

I have TPS status and my employer would like to sponsor me for a green card. Is this possible?

The green card/permanent residence process has two steps. An I-140 immigrant petition, typically filed by the employer, and the I-485 green card application, filed by you.

Your employer may take the steps to file the I-140 immigrant petition while you are in TPS status. The most common way to achieve this process is the PERM labor certification process. However, this is not the only way to obtain an approved I-140, as there are other processes available as well.

Regardless of the basis of the I-140, once the employer achieves this petition approval and the visa number is current, it is time to apply for the green card application process. A TPS holder should not have to process at a U.S. Consulate abroad for their green card, which is in contrast to a DACA recipient who would need to interview at a U.S. Consulate. TPS status is considered a lawful nonimmigrant status and a TPS holder can apply for their green card within the United States.

However, in most cases a TPS holder will need to travel internationally before applying for their green card. TPS holders are eligible to apply for a travel document while in valid TPS status. By filing Form I-131 and receiving an approved Form I-512T, Authorization for Travel by a Noncitizen to the United States, the TPS holder may travel internationally and be inspected and admitted into TPS status upon return to the United States. This lawful entry into the United States puts the TPS holder in a position to apply for their green card with their employer’s petition, as long as they are otherwise eligible.

I entered the United States without permission and without a visa. I now have TPS status and my employer filed an I-140 petition for me that is approved. Can I apply for a green card?

Individuals who “snuck in” to the United States and now have TPS status must take the additional step of applying for the I-512T travel document. Once they have an approved I-512T, travel internationally and are admitted into the United States in TPS status, they may proceed to apply for their green card as described above.

I am in valid TPS status and my I-512T is approved. However, I am scared to travel. Is it safe?

Many, many individuals with TPS travel internationally pursuant to their approved TPS travel document without issue. However, it’s wise to review your immigration history and any criminal history with an attorney before departing the United States. Schedule a consultation with one of the attorneys at MMH to review your immigration history before you travel.

I have been told that I have the 3 or 10 year “bar”. Can I still apply for my green card if I have TPS?

The answer to this question is case-specific and should be discussed with an attorney. Some visa violations can be automatically waived when applying for an employment-based green card as described above. However, there are other bars to eligibility such as the 3 or 10 year bars for unlawful presence in the United States, criminal history and other immigration violations. Such bars require a separate waiver application based on a relationship to a U.S. citizen or lawful permanent resident. However, some bars do not have a waiver available at all.

What if I was paroled into the United States and am now in TPS status? Can I apply for the employment-based green card?

A parole entry into the U.S. is different from an admitted entry with a nonimmigrant visa or a TPS authorized travel document on I-512T. It may be possible to apply for an employment based green card after a parole entry, but only in certain scenarios. If a TPS holder was paroled into the United States under a separate program, like U4U, then it is advisable to apply for an I-512T while in TPS status and travel as explained above.

Previously, USCIS would issue advance parole travel documents to TPS holders for their international travel. As of July 1, 2022, USCIS issues a Form I-512T, to make sure the TPS holder is admitted into the United States. This is a new travel policy that ultimately makes the process more clear for TPS holders to apply for an employment-based green card. However, if a TPS holder last traveled on advance parole while in TPS status, USCIS is retroactively applying the new policy on a case by case basis.

I filed for my green card through my employer and it is still pending. Do I need to keep extending my TPS status?

The cautious approach is to maintain TPS status until the green card is approved. There is never a guarantee of approval in any immigration application. It is best to make sure that your lawful status in the United States is secure until a new benefit (the green card) is approved. While the application is pending, you are allowed to have two employment authorization documents (EAD) in the two separate categories: one based on the pending green card (c9) and one based on TPS status (a12).

To discuss your case and evaluate potential options, do not hesitate to contact our office at (312) 427-6163 or schedule a consultation online.