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New USCIS policy on TPS Bar for Traffic Infractions and Violations

January 20, 2010

via Prof. Nancy Morawetz, Immigrant Rights Clinic, New York University School of Law:

CHANGE TO USCIS POLICY REGARDING TWO MISDEMEANOR BAR TO TPS

For the past two and a half years, the Immigrant Rights Clinic at NYU School of Law has advocated for a change in governmental policy regarding bars to the issuance or renewal of TPS for New Yorkers with low level, non-criminal, offenses. USCIS had been defining minor non-criminal traffic infractions and violations under New York law as misdemeanors so that two such infractions or violations bar TPS.  Through litigation and policy advocacy, the Clinic worked to convince DHS that such a broad definition of the term misdemeanor was illegitimate as a matter of law and ill-advised as a matter of policy.  This week, the Department of Homeland Security issued guidance announcing a change to governmental policy. As explained below and in the attached guidance, the new policy applies both to new applicants and to those who were improperly denied TPS. This advocacy project was handled by NYU students Sarah Vendzules ’08, Chirag Badlani ’08, Sambo Dul ’10, Julia Dietz ’10, and Elizabeth Carlson ’10.

Change to USCIS Policy

In recent years, USCIS has argued that New York state violations and traffic infractions, although they are not classified as misdemeanors under state law, are still deemed to be misdemeanors for TPS purposes. USCIS has recently changed this policy and has issued a policy directive indicating that they no longer consider most New York state traffic infractions and violations to be misdemeanors sufficient to bar a grant of TPS for two misdemeanors.  Please note that TPS applicants may nonethless be barred due to other grounds of inadmissibility based on criminal activity or convictions.  These other grounds generally cannot be waived.

USCIS will issue approvals of TPS and the related work authorization for individuals whose cases are currently pending before USCIS, who would otherwise have been denied under its old policy. USCIS will also not deny an individual for failure to re-register if the failure to do so was related to an improper denial of TPS in the past.

How to obtain TPS for clients who have already been wrongfully terminated

Individuals who have previously been denied TPS improperly (and for whom other bars do not apply) should file a motion to reopen with the appropriate Service Center.  USCIS indicates that although the filing fee or a fee waiver request must be submitted front, it will refund the filing fee for those individuals who were improperly denied TPS on these grounds. Please see the memo from U.S. Citizenship and Immigration Services for more information on procedures.

Prof. Nancy Morawetz

Immigrant Rights Clinic

New York University School of Law

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