Potential TPS Petitioners Take Precaution! Before you let your status lapse, consider the options, the financial stresses, and the immigration risks.
We have recently been fielding questions regarding TPS filings and the effect of a TPS application on an alien’s current immigration status. Predominantly, these questions have involved individuals with nonimmigrant visas determining whether to renew their nonimmigrant status or risk lapse during an application for TPS.
Those seeking TPS should first note that a decision either granting or denying your TPS status may take 3 months or more. Thus, if your status is set to expire within the next 6 months, it may be worthwhile to renew rather than risk it.
Please also note that the USCIS states that where an alien has periods of time without lawful immigration status before or after being granted TPS, those periods of out-of-status or unlawful presence may adversely affect the alien’s ability to adjust to permanent status or attain other immigration benefits, depending on the circumstances of each specific case. Although the alien may petition for a waiver of inadmissibility (where based on unlawful presence), this is no safe bet. Moreover, there does not appear to be an express provision tolling the expiration of your current nonimmigrant status during your TPS application. What on-point equitable tolling there does appear to be, it seems to be dependent on a successful TPS application, a determination of prima facie eligibility, or government error.
If you still feel determined to risk living out-of-status, you may wish to research your options under INA Section 245i and 245k, cancellation of removal, or asylum. You may have other options if you are an immediate relative of a U.S. Citizen. If you get into a bind (e.g. removal proceedings), you may also wish to research rules on equitable tolling of removal. But these efforts may be difficult routes to pursue.
Although having to renew your nonimmigrant status may be costly financially, consider the benefits: you may still file for other immigration benefits during TPS, including non-immigrant petitions, adjustment of status, asylum, or otherwise. TPS is considered lawful nonimmigrant status during its pendency, and thus does not affect other applications.
Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.