The problem with TPS is this: it requires you were here initially when El Salvador (or whatever country in question) was designated TPS eligible, and you did indeed apply at that time (ye olde "initial registration period" as defined by 8 CFR 244.2(f)(1)). Uh oh. The initial period was quite some time ago for El Salvador. But a glimmer of oddly reflected hope gave pause to our despondent state -- namely, El Salvador has been continuously re-designated, and the current extension of TPS status has been pushed to September of 2013.
Turns out, this "push" of extension to September is key. Taking the extension in mind, and reading about "late filing" we came up with an idea -- (and NOTE! This is just an idea...this is not by any means settled law -- we are experimenting with an otherwise stagnant case). 8 CFR 244.2(f)(2) states:
(2) During any subsequent extension of such designation if at the time of the initial registration period:
(i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal;
(ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;
Of special interest to us was the provision at 8 CFR 244.2(f)(2)(ii) which seems to suggest that a late filed TPS will be accepted if there is a pending asylum application in the works.
To be clear, our test case is not in removal proceedings -- this is an affirmative asylum application filed with a request to waive the 1 year filing requirement due to extreme hardship.
We plan to file the initial asylum case within a month or so, then take said filing receipt and immediately apply for TPS.
The question is -- will USCIS accept the notice of filing of the asylum case as proof of "in asylum application status" for TPS purposes? We are prepared to argue, "yes" -- as the regulations do not clearly stipulate otherwise.
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Sean R. Hanover, Esq.
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.