Asylum is a protection granted to foreign nationals already in the United States, or arriving at the border, who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution, or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980. As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status—either from abroad as a resettled refugee, or in the United States as an asylum seeker.
There are two primary ways in which a person may apply for asylum in the United States: the affirmative process and the defensive process.
Affirmative Asylum: An individual who is not in removal proceedings can affirmatively apply for asylum through the U.S. Citizenship and Immigration Services (USCIS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, he or she is placed in removal proceedings, and the asylum application can be renewed before an Immigration Judge.
Defensive Asylum: An individual who is in removal proceedings may apply for asylum defensively by filing the application with an Immigration Judge at the Executive Office for Immigration Review (EOIR) otherwise referred to as the Immigration Court. Asylum seekers who arrive at a U.S. port of entry or enter the United States without inspection generally must apply through the defensive asylum process.
Individuals who are placed in expedited removal proceedings and who tell a Customs and Border Protection (CBP) official that they fear persecution or torture, upon returning to their country or that they wish to apply for asylum should be referred for a credible fear screening interview conducted by an asylum officer. If the asylum officer determines that the asylum seeker has a credible fear of persecution or torture, the individual will then be referred to immigration court to proceed with the defensive asylum application process.
Individuals who re-enter the United States unlawfully, after a prior removal order, and those convicted of certain crimes are subject to a different expedited removal process called reinstatement of removal. To protect asylum seekers from summary removal before their asylum claim is heard, those in reinstatement of removal proceedings who express a fear of returning to their country must be afforded a “reasonable fear” interview with an asylum officer. Individuals who go through a “reasonable fear” interview can also request a hearing before an Immigration Judge.
Changes to the Asylum Process at the Border
Since April of 2018 there have been numerous changes to the Asylum Process at the border. The first of those many changes, known as the Migrant Protection Protocols (MPP), forces asylum seekers to be sent back to Mexico, where they are required to wait for the date of their immigration court hearings held at four different U.S. locations across the border.
In July 2019, DHS issued a new rule “3rd country ban”, banning asylum for all individuals who transited through a third country before arriving in the United States without having applied for asylum in that country.
In November 2019, DHS began implementing an “Asylum Cooperative Agreement” with Guatemala. Under this kind of agreement, which also is known as a “Safe Third Country” agreement, individuals seeking asylum in the United States are instead sent to a third country and required to seek asylum there.
Changes to the Asylum Process due to COVID-19
Since March 2020, in response to the COVID-19 pandemic all MPP hearings at the border were suspended through at least June 17, 2020 and the asylum cooperative agreements were put on hold as well. DHS and DOJ have stated that they will continue to postpone MPP hearings while the pandemic conditions in Mexico remain severe.
USCIS Final Rule on Asylum and Employment Authorization for Asylum Applicants
On June 26, 2020, in an effort to deter illegal entry to the United States the USCIS issued a final rule making multiple changes to the regulations governing asylum applications and eligibility for employment authorization based on a pending asylum application. The rule that became effective on August 25, 2020 will have a negative impact on the applicants for asylum. Click here for more on the U.S. Government Federal Register Final Rule.
Under U.S. Immigration Law, a refugee is someone who:
- Is located outside of the United States
- Is of special humanitarian concern to the United States
- Demonstrates persecution or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group
- Is not firmly resettled in another country
- Is admissible to the United States
One must receive a referral to the U.S. Refugee Admissions Program (USRAP) for consideration as a refugee. If a referral is received, the individual will receive help filling out an application and then ultimately will be interviewed abroad by a USCIS officer who will determine eligibility for refugee resettlement. The application can include the spouse, child (unmarried and under 21 years of age), and in some limited circumstances, other family members.
Once approved as a refugee, the individual should receive a medical exam, a cultural orientation, help with travel plans, and a loan for travel to the United States. Within two years, a refugee can seek to bring his family in the United States, if the family members are abroad. A refugee can work immediately upon arrival to the United States.
Generally, after one year, an asylee, or a refugee can apply for lawful permanent resident status (i.e., a green card) in the United States, and ultimately they can apply for naturalization.
VAWA Battered Spouse, Children and Parents
As a battered spouse, child or parent, an individual may file an immigrant visa petition under the Violence Against Women Act (VAWA) provisions in the Immigration and Nationality Act (INA). VAWA allows certain spouses, children, and parents of U.S. citizens and certain spouses and children of permanent residents (Green Card holders) to file a petition for themselves, without the abuser’s knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing. Those eligible to file, who have an approved Form I-360, may be eligible to file for a Green Card and afterwards for naturalization.
T Nonimmigrant Status (T Visa)
T nonimmigrant status provides immigration protection to victims of trafficking. The T Visa allows victims to remain in the United States and assist law enforcement authorities in the investigation or prosecution of human trafficking cases.
U Nonimmigrant Status (U Visa)
U nonimmigrant status provides immigration protection to crime victims who have suffered substantial mental or physical abuse as a result of the crime. The U visa allows victims to remain in the United States and assist law enforcement authorities in the investigation or prosecution of the criminal activity.
An applicant with a U visa may be eligible to apply for a Green Card (adjustment of status/permanent residence) if certain requirements are met including:
- Physical presence in the United States for a continuous period of at least three years while in U nonimmigrant status, and
- The applicant has not unreasonably refused to provide assistance to law enforcement since receiving the U visa
U and T visa applicants, and their family members, can apply for lawful permanent residency and later on they can apply for naturalization.
Humanitarian or Significant Public Benefit Parole for Individuals Outside the United States
Individuals who are outside of the United States may be able to request parole into the United States based on urgent humanitarian or significant public benefit reasons.
There is no statutory or regulatory definition of “urgent humanitarian reasons.” USCIS officers must look at all of the circumstances presented on the case. An applicant may demonstrate urgency by establishing a reason to be in the United States that calls for immediate or other time-sensitive action, including (but not limited to) critical medical treatment, or the need to visit, assist or support a family member who is at an end of life stage of an illness or disease.
There is no statutory or regulatory definition of “significant public benefit.” Parole based on significant public benefit includes, but is not limited to, law enforcement and national security reasons or foreign or domestic policy considerations.
At our Firm, we take pride in working with difficult cases and assisting refugees, asylees, VAWA, T, U Visa Applicants, as well as their family members, obtain lawful permanent residency and ultimately U.S. Citizenship. We also prepare immigrant and non-immigrant visa waivers should those waivers be necessary in the process.