USCIS AOS Memo: Impact on TPS Holders

Temporary Protected Status (TPS) holders face two distinct legal problems when pursuing adjustment of status, and PM-602-0199 is only the second one. The first — whether TPS holders are even eligible to adjust under INA § 245(a) — remains unsettled by a circuit split that makes the answer depend entirely on where the applicant lives.

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The Threshold Question: TPS and § 245(a) Eligibility

INA § 245(a) requires AOS applicants to have been "inspected and admitted or paroled into the United States." Most TPS holders entered without inspection — crossing the border unlawfully before later receiving TPS. That creates a statutory barrier: if the applicant was never "admitted or paroled," they cannot satisfy § 245(a)'s threshold requirement, regardless of TPS.

The circuit split:

• Favorable circuits (6th, 9th): These circuits held that travel on a TPS-based advance parole document constitutes a "parole" within the meaning of § 245(a). TPS holders in these circuits who have traveled abroad and returned on advance parole may be eligible to adjust. The 9th Circuit's analysis relies on Matter of Z-R-Z-C-, later clarified by USCIS.
• Restrictive circuits (1st, 11th): These circuits held that TPS-based travel does not constitute the "parole" required by § 245(a), and that TPS itself does not remedy the original unlawful entry. TPS holders in these circuits who entered without inspection remain ineligible for § 245(a) adjustment regardless of advance parole travel.
• Other circuits: The 5th, 7th, 8th, 10th, and others have not issued definitive decisions. Practitioners in these circuits should analyze the closest precedent carefully before advising.

The governing statute is INA § 244(f)(4), which states that TPS does not preclude the holder from applying for any other immigration benefit. That provision preserves TPS holders' right to apply — it does not grant the eligibility requirements § 245(a) independently demands.

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Current TPS Landscape

USCIS maintains the active list of TPS designations. As of May 2026, the Trump administration has taken adverse action — termination, non-renewal, or active legal challenge — against designations covering:

• El Salvador, Honduras, Nepal, Nicaragua — termination actions taken or pending
• Haiti — extension rescinded, litigation ongoing
• Venezuela — 18-month designation rescinded for 2023 beneficiaries; injunctions in place
• Ukraine — currently extended through at least late 2026

Federal courts have issued temporary injunctions blocking some terminations. The practical effect is significant uncertainty: practitioners cannot advise clients based on TPS continuity because it may change while a case is pending.

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Where PM-602-0199 Adds Risk

For TPS holders who do clear the § 245(a) eligibility hurdle — those in favorable circuits who have traveled on advance parole and have an independently qualifying immigrant category — PM-602-0199 now requires a full discretionary analysis.

The memo's negative factor list maps onto common TPS holder profiles:

• Original entry without inspection (even if subsequently regularized by TPS)
• Long-term presence under temporary protection rather than pursuit of a consular immigrant visa
• The very fact that TPS exists because conditions in the home country prevent safe return — which the memo may read as "choosing to remain in the U.S. rather than departing"

The positive equities case must be built affirmatively:

• Length of lawful U.S. residence: Many TPS holders have been in the United States for 10–25 years. That history of long-term residence and community integration is a positive equity.
• U.S. citizen children: Many TPS holders have U.S. citizen children who would suffer exceptional hardship if the parent were required to depart. This is both a family equity and a potential § 245(c) waiver ground.
• Employment and tax history: Years of authorized employment and tax filing demonstrate compliance and contribution.
• Humanitarian circumstances: The conditions that originally justified TPS designation remain relevant context for the discretionary equities analysis.

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Practical Guidance

1. Determine circuit first. Before any AOS analysis, confirm the applicant's circuit and whether the circuit has addressed TPS advance parole as a qualifying "parole" under § 245(a).

2. Preserve advance parole travel records. For TPS holders in favorable circuits, the advance parole travel document and I-94 issued on return are critical eligibility evidence. These records should be retained and included in the I-485 package.

3. Identify the independent immigrant category. TPS alone is not a category. An approved family-based petition (I-130) or employment-based petition (I-140) is required before the I-485 can be filed.

4. Build a comprehensive equities record. For cases that survive the eligibility analysis, present the positive equities affirmatively: U.S. family, length of residence, employment, and the humanitarian basis for original TPS designation.

For the complete PM-602-0199 discretionary framework see USCIS PM-602-0199: Adjustment of Status Is Now Discretionary. For humanitarian parolees in an analogous situation see How PM-602-0199 Affects Humanitarian and CHNV Parolees.