What is the United States Asylum Program and Who Benefits?
You may include your spouse and any unmarried children under the age of 21 in your own asylum application if your spouse or children are in the United States. 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 you will apply outside the United States, please see How Do I Get Resettled in the United States as a Refugee?. If you do not qualify for asylum, but fear being tortured upon returning to your homeland, you can apply for consideration under the Torture Convention.
To be eligible for asylum in the United States, you must ask for asylum at a port-of-entry (airport, seaport or border crossing), or file an application within one year of your arrival in the United States. You may ask later than one year if conditions in your country have changed or if your personal circumstances have changed within the past year prior to your asking for asylum, and those changes of circumstances affected your eligibility for asylum. You may also be excused from the one year deadline if extraordinary circumstance prevented you from filing within the one year period after your arrival, so long as you apply within a reasonable time given those circumstances. You may apply for asylum regardless of your immigration status, meaning that you may apply even if you are illegally in the United States. In addition, you must qualify for asylum under the definition of "refugee." Your eligibility will be based on information you provide on your application and during an interview with an Asylum Officer or Immigration Judge. If you have been placed in removal (deportation) proceedings in Immigration Court, an Immigration Judge will hear and decide your case. If you have not been placed in removal proceedings and apply with the BCIS , an Asylum Officer will interview you and decide whether you are 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 that you are not eligible for asylum and you are in the United States illegally, the Asylum Officer will place you in removal proceedings and refer your 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 you are in valid immigrant or nonimmigrant status and the Asylum Officer finds that you are not eligible for asylum, the Asylum Officer will send you a notice explaining that the BCIS intends to deny your request for asylum. You will be given an opportunity to respond to that notice before a decision is made on your application.
Can I Travel Outside the United States? If you are applying for asylum and you want to travel outside the United States, you must receive advance permission before you leave the United States in order to return to the United States. This advance permission is called Advance Parole. If you do not apply for Advance Parole before you leave the country, you will abandon your application with the BCIS and you may not be permitted to return to the United States. If your application for asylum is approved, you may apply for a Refugee Travel Document. This document will allow you to travel abroad and return to the United States. For more information, see How Do I Get a Travel Document?. Will I Get a Work Permit? Asylum applicants can not apply for employment authorization at the same time they apply for asylum. Rather, you must wait 150 days after the BCIS receives a complete application before you can apply for employment authorization. The BCIS has 30 days to either grant or deny your request for employment. Please see How Do I Get a Work Permit? for more information. How Can I Find Out About the Status of My Application? Please contact the BCIS Asylum Office that received your application. You should be prepared to provide the BCIS staff with specific information about your application. Please click here for complete instructions on checking the status of your application. Click here for information on BCIS offices. How Can I Appeal? Applicants will be interviewed by an Asylum Officer or an Immigration Judge. The Asylum Officer will either approve your application or refer it to an Immigration Judge for a final decision. If the Immigration Judge denies your asylum application, you will receive a letter telling you how to appeal the decision. Generally, you may appeal within 33 days of receiving the denial. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C.
What is the ABC settlement agreement? In 1985, a group of religious organizations and refugee advocacy organizations filed a class action lawsuit in federal court against the Bureau of Citizenship and Immigration Services (INS), the Executive Office for Immigration Review (EOIR) and the United States Department of State (DOS). The lawsuit is known as American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (initially known as American Baptist Churches of the U.S.A. v. Meese), and is commonly referred to as the ABC lawsuit. A federal judge subsequently certified a class of Guatemalan and Salvadoran nationals as plaintiffs in the lawsuit. The plaintiffs alleged, among other things, that the BCIS , EOIR and DOS engaged in discriminatory treatment of asylum claims made by Guatemalans and Salvadorans. In 1990, the government and attorneys representing the certified class settled the class action lawsuit. The ABC settlement agreement was approved by a federal court in January 1991. The ABC settlement agreement provides that an eligible class member who registers for benefits and applies for asylum by the agreed-upon dates (these deadlines were initially defined in the settlement agreement, but the asylum filing deadlines were later extended by agreement of the parties) is entitled to an initial or de novo asylum interview and adjudication under the asylum regulations published July 27, 1990, which became effective October 1, 1990, and special provisions of the settlement agreement.The settlement agreement also contains special provisions regarding employment authorization and detention of eligible class members. What are the benefits of the ABC settlement agreement? Guatemalans and Salvadorans who are eligible for benefits of the settlement agreement are entitled to the following benefits: Stay of Deportation (Removal) No eligible class member may be deported (or removed) until he or she has had an opportunity to obtain the benefits of the Settlement Agreement. De Novo asylum interview and decision by an BCIS Asylum Officer under the 1990 asylum regulations A de novo asylum interview and decision means a new interview and decision, irrespective of any prior decisions on the asylum claim. This means that, even if an ABC class member who is eligible for ABC benefits was denied asylum before the implementation of the ABC settlement agreement, the class member could have a new determination on eligibility for asylum by an asylum officer. Under the ABC settlement, the procedures for making the asylum determination are governed by the 1990 asylum regulations, which are different from the current asylum regulations, as well as special procedures explained in the settlement agreement itself. In particular, the 1990 regulations require an asylum officer to send any applicant found ineligible for asylum a notice explaining the reasons why the applicant has been found ineligible. The applicant then is given a period of time to respond before a final decision is made on his or her asylum application.
The ABC settlement agreement restricts the BCIS ' detention authority over eligible class members. According to the settlement agreement, an eligible class member may be detained only under the following circumstances: The class member has been convicted of a crime involving moral turpitude for which the sentence actually imposed exceeded a term of imprisonment in excess of six months; or The class member poses a national security risk; or The class member poses a threat to public safety.
Class members who are eligible for ABC benefits and who apply for asylum and employment authorization are entitled to employment authorization without regard to the "non-frivolous" standard that was required under the 1990 regulations, if they pay a fee generally applicable to employment authorization applications. If no fee is paid, the request is decided under the "non-frivolous" standard. A request for employment authorization made by a class member eligible for ABC benefits must be decided within 60 days of filing. If the request is not adjudicated within 60 days of filing, the applicant is entitled to immediate employment authorization. Eligibility for Benefits of the Settlement Agreement (Definition of class member, registration deadlines, asylum filing deadlines, bars to eligibility) To be eligible for ABC benefits, an applicant must meet three requirements. The applicant must be a class member Who is an ABC class member? Class members` are defined solely by nationality and entry date. ABC class members are defined as: All Salvadorans physically present in the United States on or before September 19, 1990, and What is ABC registration? To be eligible for ABC benefits, a Guatemalan or Salvadoran class member must have directly registered for ABC by sending an ABC registration form to the BCIS ABC Project post office box in Washington, D.C. by the date agreed upon by the parties to the settlement agreement. A Salvadoran class member may also have registered by applying for Temporary Protected Status (TPS) by the required date. Guatemalans and Salvadorans had different registration dates, as follows: Guatemalans: Must have sent an ABC registration form to the ABC Project post office box in Washington, D.C. on or before December 31, 1991. To be eligible for ABC benefits, a class member must have applied for asylum within a specified period of time. Those class members who had not applied for asylum by the time of the settlement were required to file for asylum by the following cut-off dates: Guatemalans: The class member must have filed an asylum application on or before January 3, 1995. What is Notice 5? As required by the settlement agreement, the BCIS sent a notice to Salvadorans who had registered for the first grant of TPS (regardless of whether they had subsequently re-registered for TPS or registered for Deferred Enforced Departure -- DED). This notice is referred to as Notice 5 and was sent at the end of July 1995. Notice 5 informed Salvadoran class members who applied for TPS that: they had a right to new asylum adjudications; in order to remain eligible for ABC benefits, they must apply for asylum by January 31, 1996, if an asylum application was not already on file with the BCIS or EOIR; and they had the right to file a new application, even if they had an asylum application pending before the BCIS or EOIR, but were not required to do so.
Are there any bars to eligibility for ABC benefits, if the basic eligibility requirements are met? Yes. The settlement agreement specifically excludes two classes of individuals from eligibility, even if they meet all the basic requirements, such as class membership, registration and asylum filing requirements. First, any class member who has been convicted of an aggravated felony, as defined in section 101(a)(43) of the Immigration and Nationality Act (INA) is ineligible for ABC benefits. Second, any class member who is apprehended at the time of entry into the United States, after December 19, 1990, is ineligible for ABC benefits. If you are otherwise eligible for ABC benefits, but a bar applies, the BCIS will give you a letter explaining that you have been found ineligible for ABC benefits. The BCIS cannot remove you from the United States for 30 days from the date of that notice, unless the removal is based on an aggravated felony conviction. This is to give you time to challenge the finding if you think it is incorrect. If I am eligible for ABC benefits are my spouse and children eligible too? Not necessarily. Each person must independently establish eligibility for ABC benefits. This means that your spouse or child may be eligible for ABC benefits only if he or she is a class member, has registered for ABC, and has met the applicable deadline for applying for asylum. To be a class member, your spouse or child must be a 1) Guatemalan national who entered the United States on or before October 1, 1990, or 2) a Salvadoran national who entered the United States on or before September 19, 1990. To register, your spouse or child must have individually registered for ABC benefits. Your registration for yourself will not count for registration for your spouse or child. If your spouse or child was properly included in your asylum application by the applicable deadline, that will count as having met the filing deadline. A dependent will also be considered to have met the asylum filing deadline if the dependent, though not initially included on the principal’s asylum application, was properly included in the principal's asylum application before the expiration of the filing deadline. Your spouse or child could also have met the filing deadline by submitting his or her own asylum application by the filing deadline. What if a spouse or child is no longer eligible to be included as a derivative on an asylum application? A dependent who is no longer eligible to be included as a derivative on a principal’s asylum application may still be eligible for ABC benefits, so long as the dependent is a registered ABC class member who was properly listed as an included dependent on a principal asylum application prior to the applicable filing deadline. To retain ABC benefits, the dependent will be required to file his or her own principal asylum application within 90 days of being notified that he or she has lost derivative status. When will I be scheduled for an ABC asylum interview? The BCIS has temporarily suspended asylum interviews of many individuals who are eligible for ABC benefits pending receipt by the BCIS of a Form I-881 application for suspension of deportation or special rule cancellation of removal (NACARA 203). If you are eligible for ABC benefits and do not wish to submit an I-881 and want to have an ABC asylum interview, please submit a written request for an ABC interview to the Asylum Office that has jurisdiction over your asylum claim. If you have submitted an I-881 to the BCIS , the BCIS will schedule your ABC asylum interview at the same time you are scheduled for your I-881 (NACARA 203) interview. The BCIS continues to interview those ABC eligible applicants who are being detained.
Generally, if you will be tortured, imprisoned, or persecuted for various reasons upon returning to your home country, you may qualify for relief under the Convention Against Torture (CAT). You can only apply for this form of relief if you are in Removal or Deportation Proceedings. The implementation of CAT is from an International Treaty which the United States has agreed to be a country subject to the provsions of this treaty. It is officially known as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1). While it has been around for some time, it was only recently that the United States recently ratified its provisions.
Prior to 1980, departure from communist-dominated or communist-occupied states, or departure from countries in the Middle East, was generally sufficient justification for refugee eligibility. Until this time, U.S. refugee policy was dominated by Cold War geo-political concerns and strategies. The Refugee Act of 1980 sought to eliminate the prevailing geographic and ideological preferences and to emphasize that persecution, not provenance, was to be the basis for determining refugee eligibility. The Refugee Act formally incorporated into U.S. law the international definition of refugee contained in the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. A refugee is defined as a person outside of his or her country of nationality who is unable or unwilling to return 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. By Presidential Determination certain refugees may be processed while still in their countries of origin (Cuba, Vietnam, and the former Soviet Union). While in-country processing was designed to be an exceptional remedy to refugees of compelling need, a large percentage of all refugees admitted to the United States have been processed in-country. Under U.S. law, a person who has committed acts of persecution, or has assisted in the commission of persecution in any way, on account of race, religion, nationality, membership in a particular social group, or political opinion, is not eligible for classification as a refugee.
Who is a Refugee? Under U.S. law, a refugee is a person who has fled his or her country of origin because of past persecution or a well-founded fear of persecution based upon race, religion, nationality, political opinion, or a membership in a particular social group. If the person is not in the United States, he or she may apply overseas for inclusion within the U.S. refugee program. If the person is already within the United States, he or she may apply for the U.S. asylum program This definition of a refugee does not include those people who have left their homes only to seek a more prosperous life. Such people are commonly referred to as "economic migrants," and are not refugees. People fleeing civil wars and natural disasters also may be ineligible for refugee resettlement under U.S. law, although they may fall within the protection of the United Nations High Commissioner for Refugees (UNHCR). UNHCR interviews those who believe they are refugees to decide whether they qualify for UNHCR protection. The preferred solution for most refugees is to return home as soon as it is safe for them to do so. Only the relatively few who cannot remain in countries of first asylum or who cannot eventually return home will be considered for third country resettlement. If the UNHCR determines that the appropriate durable solution in an individual's case is resettlement in a third, the case may be referred by UNHCR for resettlement in the U.S. If a person is referred by UNHCR for resettlement in the U.S., or if the person appears to be a member of a specific group determined by the U.S. Government to be in need of protection, that person may be interviewed by an officer of the U.S. Immigration & Naturalization Service (INS) who will decide whether that person is a refugee under U.S. law and thus eligible for resettlement. UNHCR and BCIS must understand the applicant's situation clearly in order to make such a decision, so it is especially important that the applicant provide as much detail as possible about why the person left his or her country. This information will remain confidential and will only be available to those persons who are employed or contracted by the U.S. government.
Which refugees are eligible for resettlement in the United States? Each year, the U.S. resettles a limited number of refugees. Refugees may be eligible for an BCIS interview for resettlement in the U.S. if: UNHCR or the U.S. Embassy refers them to the U.S. for resettlement, or They are members of specified groups with special characteristics in certain countries as determined periodically by the United States government. (For some groups, only those with relatives in the U.S. are eligible.) Generally, refugees must be outside their homelands to be eligible for the U.S. refugee program, though the U.S. processes application from refugees in their home countries in a few places. (currently, the U.S. has such programs in Cuba, Vietnam, and the former Soviet Union). Even if the applicant is determined by the BCIS to be a refugee, refugees with criminal records or certain serious health problems may be inadmissible to the U.S. Ineligibility for the U.S. refugee program does not necessarily preclude eligibility for UNHCR protection or resettlement in other countries. The following is a list of grounds for which a refugee may not be admitted to the U.S.: A person who is determined to have a communicable disease of public health significance
I am not a member of a "nationality of special humanitarian concern" on the current U.S. list. Does this mean I cannot resettle in the U.S.? The U.S. admits a few refugees from other countries each year under special circumstances. For further information contact UNHCR or the nearest U.S. Embassy or Consulate on the possibility of obtaining a referral to the U.S. refugee program.
How can I find out if I am eligible for resettlement in the United States? If you believe that you might be eligible for resettlement in the U.S., make your interest known to UNHCR or the U.S. Embassy or Consulate in your area. If you have relatives in the United States, they should contact the nearest refugee resettlement agency for advice and help in preparing the necessary forms in support of your application.
Non-governmental processing agencies carry out most of the preparation case-work for BCIS interviews. These agencies interview applicants, help prepare the applications for the BCIS , and arrange medical examinations and background checks (for security purposes) for those refugees approved by BCIS . Following BCIS approval, the processing agency also asks for the names and addresses of any relatives in the U.S., for details on the person's work history and job skills, and on any special educational or medical needs of the refugee and accompanying family members, in order to determine the best resettlement arrangements for the refugee. The International Organization for Migration (IOM) generally arranges transportation to the U.S. on a loan basis. Refugees are expected to repay the cost of their transportation once they are established in the U.S. Refugees or their relatives may, of course, pay their own transportation costs in advance.
What family members may accompany me to the United States if I am approved? Your spouse and unmarried children under the age of 21 who are with you at the refugee interview will be given refugee status, which is derived from your status. If your spouse or unmarried children under the age of 21 are not with you at the time of your BCIS interview, they will be able to follow you to the U.S., but you will have to file a Refugee/Asylee Relative Petition, Form I-730, for each of these family members. In either case, your dependent relative must also be otherwise admissible to the U.S. Other relatives may qualify for resettlement in the U.S. if they meet the U.S. refugee criteria with their own claims.
The United States is a land of great diversity. Refugees may be resettled in small towns or big cities. If you have a close relative already in the U.S., you will probably be resettled where they live. If you do not, a resettlement agency will decide the best place for you based on the availability of jobs and services. Refugees are expected to go to the assigned site and remain there during their initial resettlement. The resettlement agency, often called the "sponsor," is the most important source of information and assistance during the first months of adjustment to life in the U.S. An agency representative will meet you at the airport, arrange for housing, and prepare a resettlement plan that includes initial contact with governmental services and employment agencies. If you are approved and you do not have a sponsor in the U.S., sponsorship will be arranged. In order to retain your refugee status in the U.S., you may not travel outside of the U.S. unless you first obtain permission to return before your travel. If you choose to travel, you should first contact the nearest BCIS office for the appropriate forms to request for permission to reenter the U.S.
Americans value hard work and initiative. You should try to get a job as quickly as possible. Many refugees' familieslike many American familiesfind that both husband and wife must work. Lack of English language skill will not prevent you from getting a job, but it may limit the kind of job you can get when you first arrive. Changing jobs is common as English language and job skills improve. Many new arrivals study part-time to improve their English language and job skills while they work. Resettlement agencies can help identify appropriate programs. Successful resettlement depends on a refugee's ability and willingness to adapt to the new environment. Cooperation with the resettlement agency can be key to a successful transition. Be realistic, but be optimistic. More than two million refugees have resettled in the U.S. in the past two decades. The vast majority have made the transition to life in the U.S. and have become valued members of American society. Others have benefited from the refuge offered by the U.S. until conditions in their homelands changed and they were able to return to their homes. Because the United States is so diverse, generalizing about what to expect is difficult. You may have heard stories from friends or relatives who have recently resettled in the United States. Remember that every resettled refugee has a different experience. Seek information from a variety of sources. Resettlement is not a decision to be made lightly. It may mean that you cannot return to your home country for many years. It may result in permanent separation from friends and relatives. But, it may also be the beginning of a new life and new opportunities.
The U.S. Attorney General has statutory discretionary authority to admit any refugee who is not firmly resettled in a third country, who is determined to be of special humanitarian concern, and who is admissible as an immigrant. The Attorney General has delegated this authority to the Bureau of Citizenship and Immigration Services (INS). In both overseas refugee processing and domestic asylum proceedings, BCIS has the statutory role of being the decision-maker, determining who meets the requirements for refugee status. Within the BCIS , the Office of International Affairs, Refugee Branch, located in Washington, D.C., is responsible for oversight and management of the entire BCIS overseas U.S. refugee adjudication program. The overseas refugee processing is assigned by geographic location to the three District Offices, which are located in Rome, Mexico City, and Bangkok. The refugee interviews are conducted by BCIS officers, who are stationed in the three overseas district offices and numerous other sub-offices, and by domestic U.S. asylum officers who travel to overseas locations.
The U.S. Attorney General has statutory discretionary authority to admit any refugee who is not firmly resettled in a third country, who is determined to be of special humanitarian concern, and who is admissible as an immigrant. The Attorney General has delegated this authority to the Bureau of Citizenship and Immigration Services (INS). In both overseas refugee processing and domestic asylum proceedings, BCIS has the statutory role of being the decision-maker, determining who meets the requirements for refugee status. Within the BCIS , the Office of International Affairs, Refugee Branch, located in Washington, D.C., is responsible for oversight and management of the entire BCIS overseas U.S. refugee adjudication program. The overseas refugee processing is assigned by geographic location to the three District Offices, which are located in Rome, Mexico City, and Bangkok. The refugee interviews are conducted by BCIS officers, who are stationed in the three overseas district offices and numerous other sub-offices, and by domestic U.S. asylum officers who travel to overseas locations.
If you have been a refugee or held asylum status for at least one year, you may be eligible to change your status to that of a permanent resident. If you wish to travel outside of the U.S. (and return) while your application is being processed, you may use Form I-131, Application for Travel Document, to apply for a refugee travel document. More information may be found at Emergency Travel, and How Do I Get a Travel Document,. If you apply for work authorization and do not receive the document within 90 days of filing the application, you may obtain an interim work authorization document. After 90 days have passed, simply present the receipt that shows you have filed Form I-765 at your local office.
Case Presentation to the INS The steps that refugee applicants follow before their eligibility interviews with BCIS officers vary. Many applicants are referred to the United States Refugee Program (USRP) for resettlement consideration by officials of the United Nations High Commissioner for Refugees (UNHCR), while a smaller number are referred by a U.S. Embassy or Consulate. Other applicants are eligible to apply for the USRP directly because they are of nationalities designated as being of special humanitarian concern and in processing priorities eligible for resettlement consideration. Generally, voluntary agencies or the Joint Voluntary Agency (JVA) representatives conduct pre-screening interviews and prepare cases for submission to BCIS ; they complete the required forms and compile any necessary documents. In the in-country processing programs, applicants usually register their interest in refugee resettlement by mailing completed preliminary questionnaires to the appropriate processing entity.
Eligibility for refugee status is decided on an individual, or case-by-case, basis. A personal interview of the applicant is held by an BCIS officer. The interview is non-adversarial and is designed to elicit information about the applicant's claim for refugee status. The BCIS officer must determine whether the applicant has suffered past persecution, or has a well-founded fear of future persecution, on the basis of political opinion, religion, nationality, race, or membership in a particular social group. This determination requires the examination of objective and subjective elements of an applicant's claim. Conditions in the country of origin are taken into consideration and the applicant's credibility is assessed. BCIS refugee determinations are made according to a uniformly applied worldwide standard. Generally, all refugee applicants, with certain exceptions, are subject to the same adjudication criteria. Legislation has altered the refugee adjudication process in certain cases. The Lautenberg Amendment (a provision of the Foreign Operations Appropriations Act for Fiscal years 1990 through 1994 and subsequently extended) mandated that the Attorney General identify categories of former Soviets (specifically Jews, Evangelical Christians, Ukrainian Catholics, and Ukrainian Orthodox), Vietnamese, Lao, and Khmer, who are likely targets of persecution. Under this legislation, a category applicant may establish a well-founded fear of persecution by asserting a fear of persecution and asserting a credible basis for concern about such fear. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the definition of refugee was expanded to include persons who have resisted or been subjected to, or have a well-founded fear of being subjected to coercive population control measures.
After the BCIS interview, those applicants who are found eligible for refugee status must satisfy medical and security criteria and must be assigned a sponsor assurance. A refugee admission number is allocated to the applicant and is then subtracted from the annual ceiling. Transportation arrangements are made through the International Organization for Migration (IOM). If the refugee is unable to finance his or her transportation costs, the refugee may be eligible for a travel loan, whereby he or she must agree to repay the cost of airfare. At the port of entry, BCIS admits the refugee to the United States and authorizes employment. After one year, a refugee is eligible for adjustment of status to lawful permanent resident. Five years after admission, a refugee is eligible for naturalization to U.S. citizenship.
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