With the COVID-19 pandemic dominating the news for more than a year, the public’s attention has been diverted from other important issues, such as people fleeing their native countries to seek a better life in the United States as a refugee or asylum seeker.
People sometimes use the terms “refugee” and “asylum seeker” interchangeably, and the two do have much in common, but there are important differences between the two statuses. Let’s explore what it means to be a refugee, what it means to be an asylum seeker, and the difference between the two.
A refugee, according to the U.S. Immigration and Nationality Act (INA), is “...(A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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…” (8 U.S.C. § 1101(a)(42)(A), emphasis added.)
The INA goes on to specify that the term “refugee” does not include anyone who participated in the persecution of any person for the reasons listed above. The INA also specifically adds that a person who has been forced to abort a pregnancy or undergo involuntary sterilization, refused those procedures, or has otherwise resisted a “coercive population control program” is deemed “to have a well-founded fear of persecution on account of political opinion.”
To be granted asylee status, a person must also meet the criteria above. The primary difference between a refugee and an asylee is that a refugee is granted refugee status while still outside the United States; an asylum seeker is granted asylee status after entering the country or while seeking admission at a port of entry.
For the most part, refugees and asylees have similar rights, but there are some important distinctions, including differences in applying for status.
The U.S. Refugee Admissions Program (USRAP) has established processing priorities for individuals and groups of special humanitarian concern to the United States.
Top priority (P-1) is assigned to individuals referred by the United Nations High Commission on Refugees (UNHCR), a U.S. Embassy, or certain non-governmental organizations. Next in priority (P-2) are groups of special humanitarian concern; third priority (P-3) are family reunification cases.
Individuals with P-1, P-2 or P-3 priority who are otherwise eligible will go through a pre-screening process through a Resettlement Support Center, followed by an interview by a USCIS officer, multiple security checks, and a medical exam to determine if they are eligible for resettlement in the United States.
Once approved, an applicant is assigned to a sponsoring resettlement agency that will help with services such as housing and employment when the refugee arrives in the U.S. Refugees receive employment authorization and may request documents to travel outside of the U.S. One year after entry, refugees may apply for lawful permanent status (a green card); four years after obtaining a green card, they may apply to become U.S. citizens.
Asylum seekers must apply for asylum within one year of their last arrival to the United States (unless they can establish that an exception to the one-year rule applies). This generally happens in one of two ways: affirmatively, through a USCIS asylum officer; or defensively, when the person is in removal proceedings. An asylum seeker must complete and file Form I-589, Application for Asylum and for Withholding of Removal. A spouse and children of an applicant listed on the application may qualify for derivative asylum status through the principal applicant.
Like refugees, asylees have the right to remain in the United States for an indefinite period until it is safe for them to return to their home country. As a practical matter, a safe return is not possible for most refugees and asylees.
Unlike refugees, asylees must apply for employment authorization once their application for asylum is improved. Under certain circumstances, they may be able to apply for a work permit while their application is still pending. Asylees may apply for a green card one year after the approval of their application for asylum, and may apply for citizenship four years later.
According to the Department of Homeland Security’s annual flow report, refugees have higher naturalization rates than non-refugee immigrants. If you are a refugee or asylee who needs help establishing or maintaining status, or pursuing a green card or citizenship, please contact our law office for a consultation.