ASYLUM | REFUGEE | PAROLEE

The Terms:

Refugee

A refugee is an individual who is of special humanitarian concern to the United States. If an individual has fled his or her country and is not able to return because of possible harm or persecution, then he or she would be classified as a refugee.

Secondary Refugee

A secondary refugee is an individual who was resettled in one location and then transported or willingly moved to a new location after being settled. In many circumstances, refugees will relocate to be in proximity to closely related ethnic groups. Secondary refugees may also move from an initial settlement to avoid high poverty rates or crime.

(It is important to note an immigrant is any individual who comes to the U.S. from another country, which is usually for a better quality of life, but not all immigrants are refugees.)

Asylee

An asylee is an individual who falls under the definition of a refugee, but he or she is already in the U.S. or attempting to enter the country at a port of entry.

The difference between the refugees and asylees is that refugees are people who are located outside of the United States at the time of filing an immigrant application and asylees are those who apply with the US government while already being present in the United States or at the port of entry.

What is Affirmative Asylum?

Affirmative asylum means the individual applies to USCIS voluntarily and before being caught by the immigration officials.

According to the United States, domestic immigration law, and international obligations, those entering the country are not to be returned to their country of origin if they are at risk of persecution or torture from their government. If an individual wish to apply for asylum, they must apply within one year of entering the country.

If individuals are inside the U.S. and are in lawful status, entered illegally, or overstayed their authorized period, they still may affirmatively apply for asylum with the United States Citizenship and Immigration Services (USCIS).

There are five categories of individuals who are qualified for asylum or withholding of removal if they have been persecuted due to one of the following:

  • Ethnicity
  • Nationality
  • Political opinion
  • Membership in a particular social group
  • Religion

An individual who seeks asylum can apply at the moment they arrive in the U.S. or after he or she enters the country. To meet eligibility requirements for asylum, an individual must apply within one year of entry into the United States.

However, there are exceptions. A person can apply after the expiration of one year period if he can prove that he was prevented from applying earlier due to circumstances outside of his control. The excusable delays include individuals who were minors when they entered the country or those who suffer from post-traumatic stress disorder (PSTD). Not knowing the law is not an excuse for late applications. However, many individuals still apply for withholding of removal.

If an individual applies affirmatively with the USCIS, they will either approve his or her application for asylum or send the case to the Executive Office for Immigration Review (EOIR) to be reviewed by an immigration judge.

Asylum is a specific, legal status that allows immigrant aliens to remain in the United States under certain, limited, circumstances. There are two different types of asylum applications—defensive and affirmative—and both generally require the assistance of an immigration attorney. Below we will discuss the defensive asylum procedure.

Defensive Asylum

A defensive application is made when the applicant is a foreign national who is in the process of being deported from the country. For example, the applicant was detained by law enforcement and sent to the immigration court for a hearing. In this case, asylum um claims may is raised by the applicant’s immigration law as a defense against deportation and a legal way to have the deportation proceedings put aside in favor of the admission of the applicant as a lawful asylum seeker.

In this case, the Department of Immigration and Customs Enforcement will likely oppose the granting of asylum and they will provide their lawyer to argue against the asylum seeker in court. It is important for a person in this position to prepare alternative arguments, which might also stay their deportation, instead of relying only on one claim.

It is also important to remember that if a person is not ready for the court hearing for any reason it can lead to an expedited deportation.

United States Immigration law states that a spouse or unmarried child may be granted asylum if accompanying or following to join the principal person who was granted asylum.

(In the case of a child born after asylum is granted, you will have to prove that you are the parent of the child and the child was “in utero” on the date asylum was granted to you.)

When initially filing for asylum, the spouse and children must be named on the application. Naming the spouse and children on the application allows for them to receive the same status as the principal asylee without having to submit additional paperwork.

Spouse or child named on the application

When the spouse and unmarried children are named on the asylum application (form I-589) and are in the U.S., they will derive asylum on the same date as the principal asylee. Asylum will be granted to them as long as none of the bases for denial are present.

Bases for denial include: serious criminal convictions, security threats, or persecution of others.

Spouse or child not named on the application or living abroad

In situations where the spouse or child of the principal asylee was not named on the application, or they live abroad, the asylee is required to file Form I-730, Refugee/Asylee Relative Petition, for each qualifying family member.

The principal asylee is required to petition for their family members within two years of obtaining asylum. Form I-730 must be submitted along with evidence of the familial relationship (marriage certificate, birth certificate), and a recent photograph of each family member.

Additional documentation is required for : adopted children, stepchildren, and children born out of wedlock when the father is the principal of asylee

According to U.S. Immigration law, asylees are allowed to apply for lawful permanent residency (LPR), better known as a Green Card, after being physically present in the US for at least a year since being granted asylum.

Process

To apply for a green card as an asylee, the following documents must be submitted to USCIS:

Form I-485 Application to Register Permanent Residence or Adjust Status

Form I-693 Report of Medical Examination and Vaccination Record;

2 passport style photographs

Copy of a government-issued ID with a photograph

  • Evidence of asylee status (Form I-94, Arrival/Departure Record that shows the date you were granted asylum, grant letter, the decision of immigration judge)
  • Birth Certificate
  • Proof that the asylee has been physically present in the U.S. for at least a year (lease, bills, pay stubs)

Applying for Family Members

Your spouse and children are also eligible to apply for a green card after living in the U.S at least for one year as asylees.

Each family member is required to submit a separate form I-485.

Documents you need to submit:

  • Copy of marriage certificate (for your spouse)
  • Birth Certificate (for your children)
  • Copy of your green card or evidence that you have filed your adjustment of status application

What to Expect After Filing

  • Once you have filed your paperwork, the USCIS will send you a receipt notice acknowledging that your paperwork has been received.
  • In case you failed filling, USCIS will send you a Notice of Action to Reject or a Request for Evidence or they will request additional information.

Biometrics

The purpose of the Biometrics appointment is for USCIS to take your fingerprints, photograph, and signature.

You will be required to present a government-issued photo ID such as:

  • Drivers license
  • Passport
  • State Issued ID card

Approval

USCIS makes a decision based on the information and evidence that you have provided, with the results of the background check. Most applications do not require an interview and will receive their green card by mail once approved.

Being granted asylum in the United States is the most advantageous result for aliens who fled to the US due to the persecution in their home country.

If aliens apply for asylum before being detained by Immigration and Customs Enforcement (ICE), asylum can be granted by the asylum office.

If the asylum office does not feel the immigrant has enough evidence for asylum granted, the immigrant`s case will be transferred to the immigration court to be argued in front of the judge.

Once asylum is granted, the alien is given the right to apply for work authorization and has a path to permanent residency. Spouses and dependents listed on the asylum application may receive the same rights.

Aliens are barred from seeking asylum if they have been in the United States for over one year before they applied for asylum without any justification.

Also, people who have participated in the persecution of others based on the five categories required for asylum may not be applied for asylum.

Withholding orders can also be granted to individuals with criminal histories, those who bring a threat to the U.S. (though they may be held in detention), those who have been in the U.S. for over a year, and those who have participated in persecution.

Aliens who received a withholding of removal can remain in the U.S., but can never apply for a green card, they must extend their employment authorization every year, they cannot travel outside the US since it would be considered a self-deportation and they cannot apply for any other benefits in the US.

Article 3 of the United Nations Convention Against Torture Act protects noncitizens from being deported to a country where they may be tortured. For example, a citizen of another country who has arrived in the United States and faces deportation can request protection under the Convention Against Torture (CAT).

CAT may be used for people who have committed serious crimes, aggravated felonies either in the US or abroad, have been sentenced to up to five years in prison for felonies, were involved in the persecution of others, or terrorism.

US government may decide if the risks are worth it to keep this person in the US against the probability of having this person tortured in his home country.

CAT order grants no path to permanent residency. It also offers no immigration benefits for family members. For this reason, asylum is preferable for aliens who wish to become United States citizens or permanent residents.

Immigration courts have the authority to grant CAT protection. An alien is permitted to reside anywhere in the United States. The alien also has the right to apply to Immigration and Customs Enforcement (ICE) for work authorization. This can confuse employers, landlords, and other government agencies, so it is good practice for an immigration lawyer to write a letter on behalf of the alien that explains the status.

Deferral of removal is the least advantageous method of receiving protection under CAT. In this case, the alien has no right to apply for work authorization and may be held in detention for the duration of their stay in the United States.

The process for obtaining protection under CAT takes place in immigration court. If an alien has been found ineligible for asylum or declines to seek asylum and a deportation order has been established, he or she has a chance to apply for CAT protection.

(Immigrants must prove that there is at least a 51% chance that he/she will be tortured after coming back to their country of origin.)

Humanitarian parole is a sparing program aimed at bringing inadmissible foreign citizens to the US for urgent medical care, court hearings, funerals, and other reasons which can be considered humanitarian.

There must be an urgent humanitarian reason and significant public benefit for one to be granted parole.

Only foreign citizens living outside the jurisdiction of the US can apply for the Humanitarian Parole. Anyone can file for the application including the parole applicant him/herself, sponsoring relative, immigration attorney, or interested organization.

You can apply for parole through the US Citizenship and Immigration Services (USCIS), the US Customs and Border Protection at the US Port of Entry (CPB) or, the Immigration and Customs Enforcement (ICE) as directed by the Department of Homeland Security.

You can apply for parole through the US Citizenship and Immigration Services (USCIS), the US Customs and Border Protection at the US Port of Entry (CPB), or the Immigration and Customs Enforcement (ICE) as directed by the Department of Homeland Security.

The application package for humanitarian parole must contain original copies of Form I-131 (Application for Travel Document), I-134 (Affidavit of Support), the time needed, filing fees ($575), detailed explanations for seeking parole, and explanations as to why the visa cannot be obtained in any other way.

In the case of a medical emergency, one must also provide a detailed medical certificate regarding the diagnosis, proof of lack of appropriate treatment in-home or neighboring country, cost and duration of treatment in the US, ability to cater for medical treatment, and evidence of strong ties in the home country to warrant return upon recovery.

What is Temporary Protected Status?

Temporary Protected Status (TPR) is used in many cases where a certain country’s citizens need a temporary stay in the United States due to the extraordinary circumstances.

TPS provides temporary safe havens for people who are seeking to avoid deportation if their home country is dangerous, and allows immigrants from those countries to remain in the United States during the period specified for the country report.

Who Can Apply for Temporary Protected Status?

There are certain requirements for each applicant. Also, the applicant must already be physically present in the U.S. at the time the TPS was granted his country of citizenship. The individual must also have a clean record, free of criminal activity and other red flags.

What are the Requirements?

Requirements depend on the country.

The person who meets all imposed requirements, including physical presence and background check, may apply to USCIS, requesting to be authorized for a Temporary Protected Status and be eligible to work in the US during his stay.

Once approved, the status will be issued until the cut-off date that was initially established for the country.

How does the Application Process Work?

If you are a national of a TPS country, and you are physically present in the United States, the first step of the application process is to file Form I-821 during the filing period designated for your country (these and other forms can be found online or provided by an immigration attorney).

It is imperative to prove your nationality by a passport or a birth certificate, along with evidence of your date of entry and continuous presence in the US, which is done by submitting Form I-94 arrival/departure record. I

(If the application fee is unreachable, a request for a fee waiver can be submitted as well.)

There are some circumstances under which an individual could be deported from the United States, though some of the most common include:

  • having entered without the required authority
  • rejection of a request for asylum
  • violating the original terms under which admission was granted
  • criminal convictions while in the country or engaging with a prohibited group
  • becoming a “public charge” after arrival

Several factors are typically considered when relief from a removal proceeding is pursued. An immigration judge is likely to review how long the individual has resided in the U.S., his or her record of employment, whether there is a solid history of tax payment, standing in the community, whether any criminal record exists, and whether removal would create a substantial hardship on family members who would be left behind.

The good news is that there are often effective defense strategies that can be employed by an immigration attorney in a removal proceeding that can reduce the chances of deportation. Among these are arguments that asylum is justified based on the specific facts of the case, that a green card should be issued because an immediate relative is a citizen, or that the underlying rationale for deportation is factually false.

It may also be possible to request that prosecutorial discretion be used in the non-citizen’s favor due to his or her character references and familial links to the United States.

When a deportation or removal proceeding is initiated against a non-citizen, those at risk need to take swift action to safeguard their future in this country.

A work permit is an official document that allows you to work in the United States as a foreigner.

It comes in the form of a wallet-sized card containing your basic personal details, including a full name, photo, date of expiration, alien registration number, and the terms and conditions of your permit.

(A person who applied for asylum in the United States can apply for employment authorization in 150 days after the filing date of his application.)

The Purpose of Form I-765

The work permit equals evidence of employment authorization.

Once you file Form I-765 and get approved for employment, you will be qualified to apply for a job in the United States.

Eligibility for Form I-765

The form contains various questions that you need to answer when applying for the permit. Question 16 will pertain to information regarding your eligibility for a work permit. It contains 8 eligibility sections from which you need to select.

The sections :

  • Foreign student
  • Nationality category
  • Family-based non-immigrants
  • Dependents of international organizations, NATO, or diplomatic missions
  • Adjustment of status
  • Refugee/asylee plus their children and spouses
  • Employment-based non-immigrants
  • Other categories

Each section is subdivided into more specific subsections. If you have lost your EAD or wish to renew it, you are eligible to file Form I-765.

Also, there are some cases when you are not eligible for filing Form I-765:

  • Conditional residency
  • Lawful permanent residency
  • Non-immigrant with special authorization for employment via form 8 CFR 274a.12(b)

Application Process

Typically, the application involves filing Form I-765 and submitting the duly completed form to the USCIS. The form must be accompanied by the following:

  • Your photos
  • Proof of eligibility for a work permit
  • Application fee

(You can submit the form in one of the two ways – by mail or e-filing.)

Sometimes the latter may be convenient, you will still need to submit your supporting documents via mail.

It is a must-have document for all potential immigrants, issued by the United States Citizenship and Immigration Service (USCIS) with the purpose to allow a person to travel (leave and safely return to the U.S.) while their immigration application is pending.

 

Eligibility for Advance Parole

Advance parole is necessary for the U.S. aliens with the following:

  • Pending adjustment status
  • Asylee status
  • Family Unity Program benefits
  • Temporary Protected Status
  • Pending asylum application status

 

Any potential immigrant with a valid reason to travel out of the United States temporarily is also eligible for advance parole.

Non-immigrants may not apply for this document if they:

  • Reside in the United States with invalid immigration status
  • They earn with a private bill
  • Are foreigners on exchange under the requirements of residence
  • Are under removal proceedings

Evidence Required to Apply for Advance Parole

Whether the applicant hires the immigration attorney or not, the application typically involves filing a duly completed USCIS Form I-131 with a local USCIS office.

  • Two photographs of the applicant are required in case of presence in the United States at the time of application.
  • Applicant’s copy of the official identity document, such as a permanent resident card, driver’s license, or passport identity page. A valid copy(photo) must contain official names, date of birth, and photo of the applicant.

Applicants with a pending adjustment of status (I-485) must also submit an I-797C Notice of Action.

To get more detailed and proficient information hire the services of an immigration lawyer.

An I-601 Waiver is a form used in certain situations by immigrants who are applying for a green card and are denied for the reasons discussed below. It can also be used when an immigrant wants to apply for an immigrant benefit, they may not be immediately qualified to receive it.

Misrepresentation

An immigrant will not be admitted into the United States if it is proven they intentionally lied or misrepresented themselves about a significant item when they tried to obtain an immigrant visa or admission in the United States.

Unlawful Presence

If a foreign national has unlawfully resided in the United States for more than 180 days and voluntarily left the country before removal proceedings were started against them – they won`t be able to come to the US for three year period. These individuals can apply for a waiver.

Basis For Waiver

By submitting an I-601 waiver application, an immigrant is trying to show they have a relative who is a legal citizen of the United States or a permanent resident and this resident will experience extreme difficulties if the immigrant is denied entry into the United States or removed from the country. Or the entire family is being forced to relocate overseas.

Extreme Hardship Proof

An immigrant can provide a statement about the difficult conditions in their home country and the struggles other relatives would experience if forced to leave the United States. Newspaper articles, official reports as well as letters from experts, and more can be submitted. They can also provide a statement describing the financial difficulties the relative would experience without them. This could be done with bank statements, wage statements, property deeds, and more.