Sanchez v. Mayorkas: TPS is not a lawful "admission," so people who entered without inspection cannot apply for a green card in the U.S. based on TPS aloneSanchez v. Mayorkas, 593 U.S. 409 (2021)
Case at a glance
| Item | Details |
|---|---|
| Case name | Sanchez v. Mayorkas |
| Court | U.S. Supreme Court (on appeal from the U.S. Court of Appeals for the Third Circuit, 967 F.3d 242 (2020)) |
| Citation / docket | 593 U.S. 409 (2021); No. 20-315 |
| Argued | April 19, 2021 |
| Decided | June 7, 2021 |
| Vote | 9–0 unanimous; opinion by Justice Kagan |
| Provisions involved | INA 245(a), 245(k) (8 U.S.C. 1255, adjustment of status); INA 244(f)(4) (8 U.S.C. 1254a(f)(4), TPS holders considered to be maintaining lawful nonimmigrant status) |
| Topic | TPS and adjustment of status; the difference between "admission" and "lawful status" |
| Current status | Still good law (as of October 2026). The related TPS travel policy changed significantly in 2022, and new uncertainty arose after the BIA overruled Matter of Arrabally in August 2026 (see below) |
| Opinion text | Justia, Cornell LII |
Background: can TPS holders apply for a green card in the U.S.?
TPS is temporary protection that the U.S. government gives to nationals of countries to which it is temporarily unsafe to return because of armed conflict, natural disasters and similar causes. Holders may remain in the United States and apply for work authorization (see Form I-821). TPS itself does not lead to a green card. Many TPS holders later have a U.S. citizen spouse, children or an employer through whom they can obtain a green card by family-based or employment-based immigration. The question is whether they can adjust status inside the United States (I-485) or must go back to their home country to process at a consulate.
INA 245(a) requires an adjustment applicant to have been "inspected and admitted or paroled." People who entered without inspection (EWI) usually do not meet this requirement. On the other hand, INA 244(f)(4) provides that, for purposes of adjustment and change of status, a TPS holder "shall be considered as being in, and maintaining, lawful status as a nonimmigrant." TPS holders argued from this that since the law treats them as lawful nonimmigrants, they should be treated as having been admitted. The Sixth, Eighth and Ninth Circuits sided with TPS holders, while the Third, Fifth and Eleventh Circuits took the opposite view.
Facts
Jose Santos Sanchez, a citizen of El Salvador, entered the United States without inspection in 1997. After an earthquake struck El Salvador in 2001, the United States designated El Salvador for TPS, and Sanchez obtained TPS that year. In 2014 he applied to adjust to a green card, with his wife, Sonia Gonzalez, as a derivative applicant. USCIS denied the application on the ground that he had never been lawfully admitted. The federal district court in New Jersey ruled for Sanchez, the Third Circuit reversed, and Sanchez appealed to the Supreme Court.
Questions presented
- Since INA 244(f)(4) treats TPS holders as having "lawful nonimmigrant status," does that also mean they satisfy the "admitted" requirement of 245(a)?
How the Court ruled
The Supreme Court unanimously held that it does not. The core reasoning is that "admission" and "status" are two different concepts:
“Lawful status and admission, as the court below recognized, are distinct concepts in immigration law.”
"Admission" refers to the act of entering the United States after inspection and authorization by an immigration officer; "status" is a person's legal standing in the United States. The law recognizes situations where a person has nonimmigrant status without ever having been admitted; the opinion gives the examples of crew members and U visa holders (crime victims). Section 244(f)(4) confers status, not admission:
“The TPS program gives foreign nationals nonimmigrant status, but it does not admit them.”
The Court also explained that 244(f)(4) still has practical effect: for example, a person who was lawfully admitted on a tourist visa and then overstayed satisfies the "admitted" requirement but lacks lawful status; TPS supplies the missing status, allowing that person to apply for adjustment.
A footnote in the opinion also notes that the government mentioned that Sanchez, after obtaining TPS, had traveled abroad with authorization and on return was treated as "paroled" into the country; but Sanchez did not rely on this, and 245(k) imposed an independent limitation on him, so the Court expressly declined to express a view on whether such parole would allow a TPS holder to adjust status absent other obstacles.
What this means for applicants
People who entered without inspection and later obtained TPS
- TPS alone cannot satisfy the admission requirement of 245(a). Even with a U.S. citizen spouse or adult U.S. citizen child, you generally cannot file an I-485 directly in the United States unless you have another basis (for example, returning after authorized travel, see below; or eligibility under the 245(i) grandfather clause).
- The other route is to return home and obtain an immigrant visa at a consulate. If you accrued unlawful presence in the United States, departing may trigger the 3-year / 10-year bars; you may need to apply in advance for an I-601A provisional waiver and assess whether any other ground of inadmissibility applies.
People who were lawfully admitted, overstayed and later obtained TPS
- You already meet the "admitted" requirement. TPS allows you to be treated as maintaining lawful nonimmigrant status for adjustment purposes, which matters in practice for categories that require "maintaining status" (such as some employment-based categories).
- Other bars to adjustment must still be assessed one by one, such as unauthorized employment and whether any other ground of inadmissibility applies.
U.S. citizen spouses, children and employers
- Before filing an I-130 or I-140 for a TPS holder, first find out how the person originally entered the United States and whether they later traveled abroad with authorization; this determines whether they can adjust status in the U.S. or must process at a consulate.
Later developments
Matter of Z-R-Z-C-: adopted, then rescinded
- August 20, 2020: USCIS designated the Administrative Appeals Office (AAO) decision Matter of Z-R-Z-C- as an adopted decision. That decision held that a TPS holder's return after authorized travel does not constitute "inspected and admitted" or "inspected and paroled" within the meaning of 245(a), effectively closing off the use of travel by TPS holders to meet the admission requirement.
- July 1, 2022: USCIS issued a policy memorandum (PM-602-0188) rescinding Z-R-Z-C-'s adopted-decision status and incorporating the Sanchez decision into the Policy Manual. Under the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), a TPS holder who travels abroad with prior authorization and on return is inspected and admitted in their prior TPS status is treated by USCIS as "inspected and admitted" and can meet the 245(a) requirement, even if the original entry was without inspection.
- Since the 2022 policy, USCIS no longer uses advance parole documents to authorize TPS travel; instead it issues a dedicated TPS travel authorization document (I-512T), still applied for on Form I-131. Advance parole documents already issued and still valid may continue to be used.
A new development in 2026: Matter of Delcarmen-Lara
- On August 13, 2026, in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA overruled Matter of Arrabally and Yerrabelly, holding that leaving the country on advance parole is a "departure" for purposes of the 3-year / 10-year bars, with the new rule applying only prospectively (see Matter of Arrabally explained).
- The decision directly addresses advance parole and does not directly address TPS travel authorization (I-512T). But many TPS holders have accrued unlawful presence, and attorneys widely worry that its reasoning could be extended to TPS travel. As of October 2026, there is no clear official answer on whether departing on TPS travel authorization triggers the unlawful presence bars.
Changes to TPS designations themselves
- In recent years, TPS designations for several countries have been terminated or shortened, accompanied by litigation. Whether your country's TPS remains in effect and when it expires should be checked against the latest USCIS and Federal Register announcements.
Practical advice: what to do now
- First confirm how you entered: locate records of your original entry (I-94, passport entry stamp, visa), as well as records and travel documents for every departure and return after you obtained TPS.
- If you returned after authorized travel, keep every document: the travel authorization or advance parole document and the entry record from your return are the key to proving that you were "admitted or paroled."
- After August 2026, assess before planning any travel: if you have accrued more than 180 days of unlawful presence in the United States, any departure (including on TPS travel authorization or advance parole) may carry a risk of the 3-year / 10-year bars. Do not leave the country on the strength of the old idea that "one trip lets you adjust status." See Can I travel while my application is pending? Travel check.
- Compare adjustment in the U.S. with consular processing: if you cannot adjust in the U.S., assess whether consular processing with an I-601A waiver is feasible, along with the other risks of being outside the country.
- Re-register for TPS on time: do not let your TPS lapse while you evaluate green card options.
Frequently asked questions
I have TPS and married a U.S. citizen. Can I get a green card directly in the U.S.?
It depends on how you originally entered. If you were lawfully admitted on a visa (even if you later overstayed), you generally meet the admission requirement, and filing an I-485 in the United States can be evaluated. If you entered without inspection, Sanchez held that TPS itself cannot supply the admission requirement; it then depends on whether you have another basis, such as returning after authorized travel. Otherwise you will generally need to process at a consulate.
If a TPS holder leaves and returns on travel authorization, does that count as a "lawful admission"?
Under USCIS policy since July 2022, a person who departs with prior authorization and on return is inspected and admitted in TPS status is treated as "inspected and admitted." But after the BIA overruled Matter of Arrabally in August 2026, new uncertainty arose as to whether the departure itself triggers the unlawful presence bars, so travel must be assessed case by case beforehand.
Does Sanchez mean TPS holders can never get a green card?
No. It only holds that TPS itself is not an "admission." TPS holders who were lawfully admitted, TPS holders who lawfully returned after authorized travel, people who qualify under 245(i), and people who process at a consulate may still obtain a green card, depending on the individual facts.
Does time in TPS count as unlawful presence?
While TPS is in effect, unlawful presence generally does not accrue; but unlawful presence accrued before obtaining TPS is not erased by TPS. When assessing the risk of the bars, check your status period by period.
My country's TPS has been terminated. What should I do?
First confirm the effective date of the termination and whether any court has ordered the termination stayed. Before your TPS lapses, promptly assess whether other routes are available, such as family-based or employment-based immigration or asylum, to avoid falling out of status.
Opinion text and sources
- U.S. Supreme Court docket No. 20-315
- Cornell LII: full text of Sanchez v. Mayorkas
- Justia: Sanchez v. Mayorkas
- U.S. Code, 8 U.S.C. 1254a (INA 244, TPS)
- U.S. Code, 8 U.S.C. 1255 (INA 245, adjustment of status)
- USCIS policy alert: TPS and eligibility for adjustment of status (July 1, 2022)
- USCIS: official Temporary Protected Status (TPS) page
- EOIR: Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026)
Related reading
- Form I-821 explained: application for Temporary Protected Status (TPS)
- Adjustment of status (I-485): eligibility, process and travel risks
- Form I-485 explained: applying for a green card by adjustment of status
- Form I-131 explained: application for travel document
- Matter of Arrabally: travel on advance parole and the 10-year bar (overruled)
Do you have TPS and a U.S. citizen relative or employer, and want to know whether you can get a green card inside the U.S., or are you thinking about traveling abroad? Your manner of entry, travel history and periods of unlawful presence need to be checked one by one. Book an attorney consultation; we will first review your entry and travel records, then explain the risks of adjusting in the U.S., consular processing and travel.
This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.