Asylum is protection granted to foreign nationals already in the United States, or arriving at the border, who meet the international law definition of “refugee.” The 1951 United Nations Convention and the 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her country of origin and is unable to obtain protection in that country because of past persecution or well-founded fear of being persecuted. in the future “for racial reasons”. , religion, nationality, belonging to a certain social group or political opinion”. Congress incorporated this definition into US immigration law in the Refugee Act of 1980. As a signatory to the 1967 Protocol, and through US immigration law, the United States has a legal obligation to provide protection for those who qualify as refugees. The Refugee Act established two paths to refugee status: either abroad as a resettled refugee or to the United States as an asylum seeker.
There are two main ways a person can apply for asylum in the United States: the affirmative process and the protective process .
Affirmative Asylum: A person who is not in removal proceedings can affirmatively apply for asylum through the United States Citizenship and Immigration Services (USCIS). If the USCIS asylum officer does not approve the asylum application and the applicant does not have lawful immigration status, the applicant is placed in removal proceedings and the asylum application may be renewed before an immigration judge.
Protective asylum: A person who is in removal proceedings can apply for protective asylum by filing a petition before an immigration judge at the Executive Office for Immigration Review (EOIR), also known as the Immigration Court. Asylum seekers who arrive at a US port of entry or enter the United States without inspection are generally required to apply through the asylum protection process.
Individuals who are placed in expedited removal proceedings and who tell a Customs and Border Protection (CBP) officer that they fear persecution or torture upon return to their home country or wish to apply for asylum must be referred for an interview the examination. Reliable fear test conducted by an asylum officer. If the asylum officer determines that the asylum seeker has a credible fear of persecution or torture, the person will be referred to the immigration court to continue with the asylum application defense process.
People who re-enter the United States illegally, after a prior removal order, and people convicted of certain crimes are subject to a different expedited removal process called reinstatement of removal . To protect asylum seekers from summary deportation before their asylum claim is heard, those in reinstatement of removal proceedings who express fear of returning to their country must have a “reasonable fear” interview with an immigration officer. asylum. People who go through a “reasonable fear” interview may also request a hearing before an immigration judge.
Changes to the Asylum Process at the Border
Since April 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 must wait for their court hearing dates. immigration procedures that take place at four different US locations across the border. .
In July 2019, DHS issued a new rule, “Third Country Ban,” which bars 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 Cooperation Agreement” with Guatemala. Under this type of agreement, which is also known as a “Safe Third Country” agreement, people seeking asylum in the United States are sent to a third country and are required to seek asylum there.
Changes in the Asylum Process due to COVID-19
Since March 2020, in response to the COVID-19 pandemic, all MPP border hearings have been suspended until at least June 17, 2020, and asylum cooperation agreements have also been suspended. DHS and DOJ have stated that they will continue to postpone MPP hearings as long as pandemic conditions in Mexico remain dire.
USCIS Final Rule on Asylum and Employment Authorization for Asylum Seekers
On June 26, 2020, in an effort to deter illegal entry into the United States, 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 regulation that entered into force on August 25, 2020 will have a negative impact on asylum seekers. Click here for more information on the US Government Federal Register Final Rule.
Under United States Immigration Law , a refugee is someone who:
- You are outside of the United States
- It is of special humanitarian concern to the United States.
- Demonstrates persecution or fears persecution because of your race, religion, nationality, political opinion, or membership in a particular social group
- You are not firmly resettled in another country
- Is admissible in the United States
One must receive a referral to the US Refugee Admissions Program (USRAP) to be considered a refugee. If a referral is received, the individual will receive assistance in completing an application and will then ultimately be interviewed abroad by a USCIS officer who will determine eligibility for refugee resettlement. The application may include a spouse, child (unmarried and under 21), and in some limited circumstances, other family members.
Once approved as a refugee, the individual must receive a medical examination, cultural orientation, help with travel plans, and a loan to travel to the United States. Within two years, a refugee can attempt to bring her family to the United States, if family members are abroad. A refugee may work immediately upon arrival in the United States.
Generally, after one year, an asylee or refugee can apply for lawful permanent resident status (ie, a green card) in the United States and ultimately can apply for naturalization.
Spouse, children and parents abused by VAWA
As a battered spouse, child, or parent, an individual may file an immigrant visa petition under the Violence Against Women Act (VAWA) provisions of the Immigration and Nationality Act (INA). VAWA allows certain spouses, children, and parents of US citizens and certain spouses and children of permanent residents (green card holders) to file a petition on their own, without the knowledge of the abuser. This allows victims to seek safety and independence from their abuser, who is not notified of the filing. Those eligible to file, who have an approved Form I-360, may be eligible to apply for a Green Card and then 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 criminal activity.
An applicant with a U visa may be eligible to apply for a Green Card (adjustment of status/permanent residence) if they meet certain requirements, 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 residence and can then apply for naturalization.
Significant Public Benefit or Humane Parole for Individuals Outside the United States
Individuals outside the United States may apply for parole to enter the United States for urgent humanitarian reasons or significant public benefit.
There is no legal or regulatory definition of “urgent humanitarian reasons”. USCIS officers must review all the circumstances presented in the case. An applicant may demonstrate urgency by establishing a reason for being in the United States that requires immediate or urgent action, including (but not limited to) critical medical treatment or the need to visit, assist, or support a family member. who is in a final stage of life from 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 pride ourselves on working on difficult cases and helping refugees, asylees, VAWA, T, and U visa applicants, and their family members, obtain lawful permanent residence and, ultimately, American citizenship. We also prepare immigrant and nonimmigrant visa waivers should these waivers become necessary during the process.