Do I qualify for an adjustment of status if I entered without inspection?

Thanks for your inquiry. You have asked an excellent question which has confused the heck out of lots of attorneys, Judges and Citizenship and Immigration Services ("CIS") for many years. Let's start with you having entered the US without inspection (commonly referred to as "EWI"). Assuming that you arrived EWI, you would not be eligible to apply for adjustment of status unless you could establish that you had either made an "admission" since your arrival or that you are qualified for a benefit called §245(i). Section 245(i) is a provision of the Immigration and Nationality Act ("Act") which allows certain foreign nationals who are not eligible for consideration of an application for adjustment of status to pay a fine of $1000 and the government will forget that you are ineligible for consideration of the application for adjustment of status. As a general rule, qualifying for §245(i) requires the applicant to establish that a visa petition or labor certification had either been filed on his/her behalf in the past or on behalf of someone through whom the applicant obtained derivative qualification for the benefits of §245(i). Additionally, §245(i) requires that the qualifying visa petition was submitted prior to April 30, 2001. Unless I am missing something, it does not appear to me that anyone has ever filed anything on your behalf before your spouse filed an I-130. If there is the possibility that someone filed something either on your behalf or on behalf of one of your parents while you were unmarried and under 21, then perhaps §245(i) may help in this matter. But I assume that it does not. So the alternative here is that the Act specifically provides that an individual granted TPS is to be treated as someone who is validly maintaining nonimmigrant status in the US during the period of time that the applicant has been granted TPS. Interesting because someone who is admitted to the US and who is maintaining status as a nonimmigrant is generally eligible for consideration of adjustment of status. There are two lines of guidance here. One is an unpublished decision from the Board of Immigration Appeals indicating that folks who are currently maintaining TPS status can establish eligibility for adjustment of status even if that same individual entered the US EWI. The other is policy guidance from the legacy Immigration and Naturalization Service which indicates that the Board's unpublished decision is incorrect and that someone who entered EWI does not qualify to apply for adjustment of status even if the individual is currently authorized to be in the US consistent with their TPS. In my practice I have had these cases go both ways. I have filed applications which have been approved and I have filed applications which have been denied. Truth is that there is no straight and consistent guidance out there and if someone tells you differently I would ask them for evidence of the precedent upon which they rely to indicate that someone like you is indeed clearly eligible for consideration of an application for adjustment of status. An experienced and knowledgeable attorney will explain to you that there is no straight answer to this question. But if you are willing to fight the fight, I think that there is a fight to be made. I think that the provision of the Act which clearly indicates that individuals with TPS should be treated like they are validly maintaining nonimmigrant status is the correct way to look at this. But keep in mind that what I think is not necessarily what the government thinks and that you may be in a position where you may lose filing fees and attorneys fees if you file and the application is denied. There is not much to lose here in that you have TPS and that will not be taken away even if an I-485 is denied. I would suggest that you lawyer up and find someone who you think can do a good job an if you have he resources, the arguments are there to be made. Good luck.