There are different ways in acquiring a legitimized status to stay and work in the U.S. For aspiring immigrants, a visa application is the first thing that comes to mind.
But one of the unconventional ways of getting a legitimized status for residence in the U.S. may sometimes be a result of escaping from a difficult or unfortunate circumstance – which is through an application for asylum.
Asylum is often sought by persecuted citizens who claim to be a refugee and are escaping violence and injustice from their own countries who cannot give them adequate legal protection, and who would rather opt to embark on a dangerous plight of escaping their country to seek legal protection in the U.S.
The majority of these asylum seekers come from countries that are suffering from conflict, war, disaster, or weak rule of law.
However, it is not limited to the said circumstances, since those who have already entered the U.S. using a tourist visa or other temporary visa, may still apply for asylum if they meet the requirements.
What is Asylum?
An asylum is a form of protection granted to individuals who can prove that they are unable or unwilling to return to their country because of persecution or a well-founded fear of persecution on account of political opinion, religion, race, nationality, or membership in a particular social group.
After World War II, the right to seek asylum was recognized and incorporated into international law as a response to the inhumane treatment suffered by the victims in their own country during the said war.
The relevant provisions of the Geneva Refugee Convention were adopted by Congress into the U.S. immigration law when it passed the Refugee Act of 1980.
Who is granted asylum?
As per U.S. immigration law, a person granted asylum or an “asylee” has the right to remain in the U.S. indefinitely (or at least when the conditions in their home country return to normal) without fear of deportation.
Among other rights, they are qualified to work, travel within or outside the country, and even apply on behalf of their spouse or children under the age of 21 to join them. In exceptional cases, some asylees are even allowed to work pending their asylum application process
Is an Asylee a Permanent Resident?
Note however that an asylee, although may enjoy similar privileges, does not acquire the same legal status that of an immigrant which is considered as permanent resident status.
It is only after a year from asylee’s entry when he or she becomes eligible to apply for a green card or a permanent resident status.
Four years after securing a permanent resident status, they can apply for citizenship.
Steps and Procedures When Seeking Asylum
Asylum seekers who arrive at the U.S. (usually on U.S. borders) are placed in either immigration court removal proceedings, where they will have an opportunity to file their case for asylum before an
administrative judge. However, in most cases, asylum seekers would find themselves under expedited removal proceedings, which allow border agents to order an individual deported from the U.S. without a hearing before a judge.
However, under U.S. law, if a person in expedited removal shall state a fear to return to their country or would state their intention to apply for asylum, they shall be referred to an asylum officer from the U.S. Citizenship and Immigration Services (USCIS) who shall conduct a fear interview.
The proof that is required by the USCIS from the asylum seeker is the existence of the “significant possibility” of his or her eligibility for asylum.
The asylum seeker’s claim of fear will be subjected to a credibility assessment by the USCIS officer. If the credibility and significant possibility are determined based on the assessment, the asylum seeker is then referred to an immigration court, where their asylum application will be heard by an immigration judge.
If the individual does not meet the credible fear screening standard, he or she can be deported.
Should one Apply for an Asylum to Reside and Work in the U.S.?
Some consultants or legal professionals may provide ill advice for aspiring migrants in securing legitimate immigrant status through asylum as a workaround.
This is not recommended since it constitutes fraud. Resorting to asylum procedures, instead of the usual visa applications, when one is not eligible and does not meet the requisites (as mentioned above) will only increase the impossibility (or even declared as blacklisted) from becoming a green card holder or a U.S. citizen.
Is a Lawyer Required for Asylum Applications?
While the asylum application procedures appear to be simple on paper, the overall legal process is actually quite confusing.
Simple mistakes can occur with great repercussions, like when an asylum seeker who is already scheduled for an administrative hearing would end up appearing in the wrong venue or courthouse, which can result in being declared as a no show by the presiding judge, which leads to dismissal of the application.
Thus, while asylum seekers may opt not to have a lawyer in their applications, having a legal representative who is proficient in the overall process would significantly increase the success rate of asylum applications.
In fact, a study on asylum cases has found that asylum seekers are five times more likely to be granted asylum by the immigration court when represented by a lawyer.
The probability of success is higher because a competent and capable lawyer will be able to assist in gathering evidence as well as research and cite Federal Court and BIA cases to support the application.
Furthermore, a lawyer is best suited to prepare the asylum seeker for the direct and cross-examination in Court.
In establishing a good case for the asylum applicant, immigration lawyers also have contacts who are expert witnesses who can help substantiate the asylum seeker’s claim about his or her country.
It is an understatement that immigration judges and lawyers are experts on immigration and asylum laws, but in establishing the conditions and status of the country of origin of the asylee, such matters are best left to the hands of expert witnesses like recognized professors and journalists in such field.