IMMIGRANT VISAS - Refugee and Asylum Status

Refugee Status: Granted to persons in emergent areas in the world as declared by State Department. e.g. Vietnam Afghanistan and Yugoslavia. Interviews conducted via UN High Commissioner for Refugees, refugee status granted in US Consulate/ Embassies designated, will be able to file permanent residence in US after 1 year of grant of refugee status and admission.

Asylum Status: Granted to applicants in US who entered illegally or with Visa and physically in United States. Must show persecution by reason of race, ethnicity, nationality, religion, gender, and membership of a political group. Asylum granted indefinitely can apply for permanent residence after 1 year of holding asylum status, all privileges of permanent resident in asylum status, except cannot visit home country.

Who is eligible for refugee status
Any person who cannot reside in a country due to persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion may apply to be granted asylum into the United States. Additionally, the person applying for asylum must not be “settled” in any other third country were he would otherwise be safe from persecution. The applicant must show sufficient evidence to prove persecution, or that he has a legitimate fear of future persecution. Many different forms of proof are valid to show evidence of such persecution.

An alien who is outside the U.S. and fits the above definition is considered a refugee. If the alien is already in the U.S., she is considered an asylee. The alien, irrespective of her current status, may be granted asylum by discretion of the Attorney General. From the date that the alien is within the United States or present at a border or port of entry, the alien has one year in which to apply for asylum. All aliens are afforded the same procedural rights when applying for asylum. However, stowaways are a "disfavored" category of aliens since they have no right to examination before an Immigration Judge and no right to appeal an asylum request.

Spouses and children may also enter the United States as derivatives to the refugee if they enter the United States in the physical company of the refugee. Or, spouses and children may enter the United States under a “following-to-join” derivative status. This occurs when the spouse or children are admitted to the U.S. after the refugee has been in the United States for at least four months.

What are the exceptions to refugee status
The definition of “refugee” does not include war refugees or displaced persons who flee areas of armed conflict for reasons other than persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Specifically excluded from the term “refugee” are people who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. However, in some instances, those persons who attempt to establish a coup in their home country as a form of political expression may be granted asylum if that person can establish that the coup's actions were justified. For a coup's actions to be justified, the refugee must establish that there were no procedures by which citizens may freely and peacefully change the laws, the officials, or the form of government; and where individuals who express views critical of the government are arrested and held incommunicado for long periods of time without due process.

Where to apply for refugee and asylum status
Aliens who need to apply for refugee status should consult an attorney, a non-profit organization, or the U.S. Consulate for help in the application process, whenever possible. Refugee applications are submitted to the country's US Immigration Service office or a consular office designated for refugee investigations. The locations of these consular offices are Nairobi, Havana (Cubans only), Mexico, Bangkok, Hong Kong, Kuala Lumpur, Manila, Ankara, Athens, Belgrade, Frankfurt, Madrid, Moscow (former Soviets only), Rome, Vienna, Zagreb, Cairo, Riyadh (Iraqis only), and New Delhi. If the applicant's life or safety is in imminent danger, the consular officer must follow special instructions regarding temporary refuge, and must notify the State Department of such incidents. Applications by asylum applicants are submitted to the Nebraska Service Center. And, an interview will follow the application for asylum. At this interview, the applicant will submit evidence to prove his/her case.

How to apply for adjustment of status as an asylee
After an asylee or refugee has been granted asylum in the United States, she can then apply for an adjustment of status to become a United States permanent resident. The asylee must first maintain one full year of presence in the U.S. in order to obtain an adjustment of status to permanent residence. The same regulation applies for those persons who are derivatives of an aslyee. Ultimately, the Attorney General has the discretion to grant adjustments to permanent resident status (up to 10,000 adjustments may be made each fiscal year). Persons with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion may be eligible to apply for asylum or refugee status in the U.S.