President Joe Biden’s balancing act on the politically fraught issue of immigration moves to the U.S. Supreme Court in a case that finds the new administration at odds with Democratic lawmakers and progressive allies.

In an argument set for Monday, the administration will defend the government’s policy of blocking permanent-residency applications from thousands of immigrants who’ve been living legally in the U.S. for years.

Immigration advocates say they’re disappointed in the administration’s position, which involves the Temporary Protected Status program for immigrants from countries in crisis. The TPS program includes people who entered the country illegally, and the administration says a federal statute bars that group from seeking green cards.

“Urging the Supreme Court to take this position seems at odds with the administration’s broader approach on immigration and, importantly, the law does not require it,” said Brianne Gorod, a lawyer at the Constitutional Accountability Center, who represents the lawmakers.

The case before the high court concerns Jose Sanchez and Sonia Gonzalez, a married Salvadoran couple who entered the U.S. illegally in the 1990s. They applied for and received TPS after El Salvador suffered a series of earthquakes in 2001.

In 2007 Sanchez got an employment visa through his employer, Viking Yacht Co., and seven years later he sought to use that visa to get what’s known as an “adjustment” to permanent status for himself and his wife. U.S. Citizen and Immigration Services rejected the application in 2015, saying Sanchez was ineligible because he had “never been admitted into the United States.”

Bound by Law

The administration says it’s bound by the wording of federal law, which requires green card applicants to have been “inspected and admitted” into the country. The administration says the government has interpreted that statute for 30 years as excluding people who entered illegally, though the policy wasn’t formalized until the Trump era.

“Adjustment of status from within the United States is a privilege that has generally been reserved since 1952 for non-citizens who entered lawfully, not those who merely received temporary protection against removal,” acting U.S. Solicitor General Elizabeth Prelogar argued in court papers.

Sanchez and Gonzalez contend they met the “inspected and admitted” requirement by having being approved for the TPS program. They say the government’s stance would force them to return to El Salvador and apply for immigrant visas there before they could seek permanent status — something they say Congress didn’t intend when it set up the TPS program in 1990.

“Allowing qualifying TPS recipients to adjust status without leaving the United States furthers the statutory purpose of protecting people like petitioners whose native countries are unsafe,” their lawyers argued in court papers. Sanchez and Gonzalez now live in New Jersey and have four sons, the youngest of whom is a U.S. citizen.

Trump Policies

Those opposing Biden at the Supreme Court include nine Democratic members of Congress who filed a brief backing Sanchez and Gonzalez

So far at the Supreme Court, the Biden administration has made its mark on immigration mostly by rescinding Trump policies the justices had been planning to consider. Those changes prompted the court to dismiss cases over Trump’s border wall, his remain-in-Mexico policy for asylum-seekers, and his tough test for screening out green-card applicants who might become dependent on government benefits.

Changing the TPS policy would have been more complicated given that an appeals court said in the Sanchez case that federal law required the government to reject the green-card applications. The Biden administration inherited the case after the Trump administration appealed to the high court.

“It’s important that we keep our ability to have temporary humanitarian programs because it’s something that we want to able to do for people without having it turned into an immigration program,” Hajec said.

Immigrant-rights advocates say continued temporary status is a bad fit for people who’ve legally established deep roots in their communities.

”What sense does it make to say that somebody has to continue to live in this year-to-year temporary status?” said Charles Roth, director of appellate litigation at the National Immigrant Justice Center. “To keep people in this sort of limbo just doesn’t make any sense as a policy matter.”

The case is Sanchez v. Mayorkas, 20-315.