Asylum & Refugee
Asylum may be granted to people who are already in the United States and are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. If an applicant is granted asylum, he or she will be allowed to live and work in the United States. The applicant will also be able to apply for permanent resident status one year after he or she is granted asylum. However, the current waiting period is significantly longer. Although not required, the assistance of an immigration lawyer can be quite helpful in an asylum petition.
An applicant may include his or her spouse and any unmarried children under the age of 21 in an asylum application if the spouse or children are in the United States, or they may apply independently if they have their own grounds for the application.
Asylum status and refugee status are closely related. They differ only in the place where a person asks for the status. Asylum is asked for in the United States; refugee status is asked for outside of the United States. However, all people who are granted asylum must meet the definition of a refugee. If an applicant does not qualify for asylum, but fears being tortured upon returning to their homeland, they can apply for consideration under the Convention Against Torture.
To be eligible for asylum in the United States, one must ask for asylum at a port-of-entry (airport, seaport or border crossing), or file an application within one year of arrival in the United States; however, an applicant may request asylum later than one year in rare circumstances. One may apply for asylum regardless of immigration status, meaning that someone may apply even if they are in the United States illegally.
Eligibility for asylum is based on information provided on the application and during an interview with an Asylum Officer or Immigration Judge. If an applicant has been placed in removal (deportation) proceedings in Immigration Court, an Immigration Judge will hear and decide the case. If the applicant has not been placed in removal proceedings and applies with the USCIS, an Asylum Officer will interview the applicant and decide whether he or she is eligible for asylum. Asylum Officers will grant asylum, deny asylum, or refer the case to an Immigration Judge for a final decision. If an Asylum Officer finds the applicant ineligible for asylum and he or she is in the United States illegally, the Asylum Officer will place the applicant in removal proceedings and refer the application to an Immigration Judge for a final decision. Immigration Judges also decide on removal if an applicant is found ineligible for asylum and is illegally in the United States. If an applicant is in valid immigrant or nonimmigrant status and the Asylum Officer finds that he or she is not eligible for asylum, the Asylum Officer will send a notice explaining that the USCIS intends to deny the request for asylum. The applicant will be given an opportunity to respond to that notice before a decision is made on the application. Often, a case will be referred to a local Immigration Court. An applicant is then provided the opportunity to produce more detailed evidence of the claim and may be represented by an attorney.
If one is applying for asylum and wants to travel outside the United States, the applicant must receive advance permission before leaving in order to return to the United States. This advance permission is called Advance Parole. If one does not apply for Advance Parole before leaving the country, the asylum applicant will abandon his or her application with the USCIS and may not be permitted to return to the United States. If the application for asylum is approved, the applicant may apply for a Refugee Travel Document; however, travel to certain counties may be difficult, and this should be carefully reviewed.
Refugee Status
Refugee status may be granted to people who meet the definition of a refugee, but are outside of the United States and therefore ineligible for asylum. Determination of refugee status for admission to the United States is governed by the same legal principles and standards as asylum, but unlike asylum, there is a strict limit on the number of people that can be accepted into the United States as refugees. Each year, the United States government sets a cap for the number of refugees it will accept from each continent. The United States has also established a tiered system of "refugee processing priorities", indicating specific countries and circumstances that are regarded as high priority under United States refugee law.
Generally refugees must apply from a third country after escaping from the country of origin and show there is sufficient need for an interview to determine refugee status. If applicants fall under the United States refugee processing priorities, they will be eligible for an interview. The application is processed through the United States Refugee Resettlement Program in one of their established consular posts. The established posts for refugee interviews are in Accra, Cairo, Nairobi, Havana, Mexico City, Bangkok, Ho Chi Minh City, Athens, Frankfurt, Madrid, Moscow, Rome, Vienna, Ankara, Damascus, Islamabad and New Delhi. At any of these locations, an applicant may file a Refugee Application (I-590), a Biographical Form (G-325A) and fingerprints with the consular office in one of the countries listed.
The United States Refugee Resettlement Program will periodically make tours to other locations and accept applications there for limited periods, but these tours are unpredictable, and an applicant is better off applying in one of the countries listed above, if it is at all possible.
Applicants bear the burden of proving that they are eligible for refugee status and there is no administrative appeal of a denial. Applicants are ineligible for refugee status if they are already firmly resettled in a third country or if they fail to meet the standard of "refugee" under international law. Other requirements, such as a medical examination and proof of employment or support in the United States or relevant family connections may also be necessary, depending on the situation.
The United States has a tiered priority system for processing refugees. First priority refugee applicants are those referred by the United Nations High Commission for Refugees (UNHCR) or recognized by United States embassies. The second priority is reserved for groups that have been recognized as a "special concern" to the United States. Third, fourth and subsequent priorities apply to refugees who are designated family members of people lawfully residing in the United States. A description of eligible refugees for the second, third, and fourth priorities is available on the United States Citizenship and Immigration Services website here.
If applicants know they are not eligible under the second priority description, they should contact the UNHCR for guidance immediately upon escaping their country of origin, because the United States treats refugees recognized by the UNHCR as first priority. As an example, the UNHCR has recognized that Chaldeans in Iraq currently face severe persecution and it has urged countries to take action to protect them as refugees. Therefore, Chaldean refugees may be treated as first priority refugees if they first contact and obtain the support of the UNHCR. Information on the UNHCR is available at their website at http://www.unhcr.org/.
