U.S. immigration law permits persons fleeing persecution to seek protection under several different categories. Some allow the applicant to apply for a green card through asylum or refugee status.
A refugee is defined as any person outside his or her country of nationality who, because of a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” is unable or unwilling to return to that country, and is unable or unwilling to avail him- or herself of the persecution in that country. There are two routes to gaining asylum: affirmatively through a USCIS asylum officer or defensively with an immigration judge in removal proceedings.
A person admitted as a refugee, is required by law to apply for a Green Card (permanent residence) in the United States 1 year after being admitted as a refugee if s/he:
To apply for a Green Card as a refugee, an applicant needs to apply for an Adjustment of Status. When the permanent residency is granted, a refugee applicant will have his/her adjustment of status date recorded as the day of entry into the United States as a refugee.
An asylee is a person who meets the definition of refugee, but who is either physically present in the U.S. or is at a land border or port of entry to the U.S. at the time s/he seeks refuge.
In contrast to asylum adjudication, a finding of reasonable fear of persecution cannot be based on past persecution alone, in the absence of a reasonable possibility of future persecution. This is because withholding of removal is accorded only to provide protection against future persecution and may not be granted without a likelihood of future persecution. However, a finding of past persecution raises the presumption that the applicant’s fear of future persecution is reasonable.
Asylum is a discretionary relief. To be eligible for asylum, an applicant (person who is already in the U.S.) must file for asylum within one year of his/hers last arrival to the United States. When not timely filed, an applicant may qualify for an exception by demonstrating the existence of the material circumstances that caused failure to file within the deadline.
There are other situations that may result in rejection of the application for asylum. The adjudicator may take into consideration negative factors such as past immigration violations and criminal history.
Asylum applicants may not be deported during the pendency of their application. They are eligible for work authorization after their application has been pending for a certain period of time.
Form I-589 Provides Sufficient Notice of Frivolous Filing Consequences The court held that the written notice provided on I-589 asylum application form is sufficient to meet the statutory requirement in INA §208(d)(4) that an applicant be notified of the consequences of filing a frivolous application. (Ruga v. U.S. Att’y Gen., 7/2/14)
An applicant who is not eligible for asylum – for example, who is one-year barred – may still be eligible for the alternative relief of withholding of removal or protection under the Convention Against Torture. Such mandatory relief is given by the judge. An applicant cannot generally travel outside the United States, cannot petition for family members, and cannot work in the Unites States. Mandatory relief doesn’t permit adjustment of status path to citizenship.
Asylee status is not required to apply for a Green Card; however, it may be in his/hers best interest to do so. If USCIS granted asylum status, a recipient is eligible to apply for a Green Card (permanent residence) through one year after receiving his/her grant of asylum if s/he:
Asylees no longer qualify for asylum status with the right to remain permanently in the United States if: country conditions change in his/her home country or s/he no longer meets the definition of an asylee due to changed circumstances.
Spouses and children (as derivative relatives) of refugees are admitted as refugees even if they would not qualify on their own. Such admission is permitted if the relationship existed prior to the principal’s admission to the U.S. and continues to exist at the time of admission. There is no time-limit imposed on the family member to travel to the U.S. once the petition is approved. Employment is authorized incident to status.
In certain cases, the Child Status Protection Act (CSPA) may allow to retain the classification of a “child” even if the child has reached age 21, if s/he is unmarried and was 21 at the time the parent applied for refugee status. USCIS will backdate the admission date on the Green Card to one year prior to the Green Card approval.
NOTE: Other relatives of the refugee may not enter the U.S. as an accompanying relative. However, if they reside in the same household, they may be given an interview to qualify for refugee status in their own right.
At Guzhva Law Firm, we are providing thoughtful solutions and measurable value to each individual situation. Because U.S. immigration law and regulations significantly affect how foreign nationals may qualify for immigrant visas, it is important that you obtain up to date information about the provisions that apply to you.
Our Seattle immigration attorney can help you prepare the forms and supporting documents with much less of your time involved and with much more accuracy. Furthermore, the attorney will be able to evaluate your situation for your eligibility for a Green Card through Asylum or Refugee Status.
To schedule a free phone consultation with an immigration attorney, please contact us today. With offices in Washington State, in Bellevue near Seattle, we work with clients worldwide.
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