Overview of U.S. Asylum and Refugee Policies

The following is a fact sheet of U.S. immigration options for asylum seekers and refugees.

Definition of Refugee

A  refugee is an individual unwilling or unable to return to their home country because of a credible fear of persecution. The definition of refugee only involves a small portion of the displaced population. Reasons other than a well-founded fear of persecution displaced some individuals from their home countries.

For instance, as of 2021, displacement affected over 4 million Venezuelans. While many left due to severe socioeconomic conditions in the country, not all might qualify as refugees or asylum seekers based on the specific criteria of fear of persecution.

Often, they are facing poverty and violent crimes. Yet, even though they do not fit the exact definition of refugee, they are still colloquially referred to as refugees. This is because they are fleeing from the conditions of their home countries.

The United Nations High Commissioner for Refugees (UNHCR) significantly determines refugee status in many situations globally. In some cases, especially in countries with robust refugee determination systems, people may apply domestically.

The United Nations will run an Interpol (International Police Organization) check, interview the applicant, review the evidence, and then grant or deny recognition as a refugee. If the UNHCR grants refugee status, they will provide the applicant with a refugee travel document. The process also involves collaboration with the Department of State, particularly in facilitating refugee resettlement. The processing of refugees aligns with the Refugee Act and relevant international law.

Refugee Flow Worldwide

Since March 2020, over 230,000 people have arrived in the U.S. in family groups. Most of them were mainly from Honduras, Guatemala, and El Salvador. However, Title 42 expelled them. Title 42 also expelled thousands of single adult asylum seekers, sending over 10,000 Haitians back to Haiti.

The Trump administration invoked Title 42 back in March 2020, citing the need to stop the spread of the COVID-19 pandemic across the U.S. borders. Through this rule, the U.S. authorities could remove migrants crossing the borders.

Number of Refugees as of 2021, 2022 and 2023

According to the data given by UNHCR, there were 27.1 million refugees worldwide by the end of the 2021 fiscal year. The top five countries of origin for refugees as of 2021 are as follows:

In 2021, the most significant number of refugee arrivals settled in the following states:

Number of refugee arrivals in 2021

The UNHCR also recognizes individuals fleeing threats by gangs and criminal groups worldwide. This circumstance is prevalent in countries like Mexico.

As of 2022, over 110 million people worldwide were forcibly displaced due to conflict, violence, persecution, or human rights violations. By May 2023, the worldwide figure exceeded 110 million. The Russian invasion of Ukraine also caused the most significant and fastest forced displacement.

Resources for Asylum Seekers and Refugee admissions

UNHCR provides extensive resources when advocating for asylum seekers in the United States. Although federal and state laws support individual claims, the UNHCR highlights the relevant international legal standards. Some of the core topics that UNHCR materials cover are as follows:

• Gender-based asylum claims
• Children asylum claims
• Mexican and Central American asylum claims
• Detention issues
• Statelessness

Note that there are differences between asylum seekers and refugees. Individuals who travel to another country seeking a “safe haven" are called asylum seekers. On the other hand, those fleeing to another country and waiting there for the opportunity to resettle are called “refugees for resettlement.

Definition of Asylum Seekers

An asylee is an individual outside their country of residence who cannot return to their home country due to a well-founded fear of persecution. Compared to refugees, who are constantly outside of the U.S., asylees are migrants already present in the U.S. and attempting to seek admission at the port of entry. They often suffer from fear or persecution in their country of origin due to the following:

• Race
• Religion
• Nationality
• Membership in a particular social group; or
• Political opinion

The asylum system ensures that asylees and refugees can gain legal residency status in the United States if they fulfill specific requirements under asylum law. While seeking asylum, an asylum officer from the USCIS interviews the applicant. They will determine the applicant's eligibility and other circumstances surrounding the case.

Although Congress has laid out federal laws, the Department of Homeland Security (DHS) and its agencies handle the asylum process. Applicants undergo a series of processes with the DHS before acquiring asylum status. This involves the submission of documents and going through an interview with a DHS asylum officer. The Supreme Court rulings and executive orders may impact the application of these regulations. Thus, DHS officers determine each subject on a case-by-case basis.

Affirmative Asylum and Defensive Asylum

There are two different types of asylum applications. First is the affirmative asylum, and second is the defensive asylum. The difference between the two mainly lies in the goal of the application.

Affirmative Asylum

For affirmative asylum applications, the noncitizen is physically present in the country. The applicant must then file Form I-589 to the U.S. Citizenship and Immigration Services (USCIS). The asylum seeker should apply within one year after arrival in the United States. However, note that certain conditions apply to this one-year limitation. This article by FindLaw discusses the topic of affirmative asylum in a more detailed manner.

Defensive Asylum

Defensive asylum applies to foreign nationals facing removal from the United States. The foreign national must often apply for defensive asylum if declared ineligible for affirmative asylum. A defensive asylum application is also seen in cases wherein the immigrant seeks withholding of removal or deportation proceedings with the immigration court.

Asylum Procedures and Limitations

An individual seeking asylum applies directly to the U.S. government, specifically the U.S. Citizenship and Immigration Services (USCIS). U.S. law generally requires that an asylum application be filed within one year of the person's arrival in the United States. However, specific procedural requirements and time restrictions apply in some instances.

Asylum applicants may also apply for employment authorization. However, a waiting period starts when the USCIS receives the asylum application. The current immigration policies determine the length of the waiting period, which may change. Due to the constant changes in immigration policies, it is crucial to stay up to date.

Acquiring Permanent Residency

Asylees may acquire Lawful Permanent Resident (LPR) status upon application with the USCIS. They can apply for permanent status one year after being granted asylum. Permanent residency not only allows individuals to stay in the U.S. indefinitely, it also offers other advantages. Included among them are eligibility to work and benefits from social services.

To gain an LPR status, the asylee should meet the following requirements:

• They must file Form I-485 or the Application to Register Permanent Residence or Adjust Status.
• They must be physically present in the U.S. for at least one year before filing I-485.
• They must submit evidence of the asylee's immigration status. This evidence includes a copy of Form I-94.
• They must submit evidence of one year of physical presence in the country. This may include school enrollment records, letters of employment, contracts of lease, or other similar documentation.
• They must provide birth records, such as birth certificates.

A detailed explanation of gaining LPR status as an asylee can be found in this article by FindLaw.

Eligibility of Family Members of Asylum Applicant

The asylum applicant's immediate family members may also qualify for asylum. This applies in particular if the asylee includes their family members when filing for the asylum application. When the asylee applies, these family members don't need to be physically present in the country.

Complementary Pathways for Admission to Third Countries

UNHCR provides safe avenues through complementary protection pathways for individuals to gain admission to third countries. This avenue gives individuals the legal right to stay in a third country to seek international protection. For instance, one avenue that an asylee or refugee may take is to pursue education in a third country. They may also take employment opportunities. Family reunification humanitarian sponsorship procedures may also be another complementary path for admission.

Beneficiaries of complementary pathways may access third countries. Here, they can seek various protections and gradually obtain permanent status. Similarly, they can also support themselves to reach a more durable solution.

Complementary pathways for admission to third countries may involve one or a combination of the following:

• Humanitarian pathways
• Family reunification procedures
• Labor mobility pathways
• Education pathways
• Private sponsorship
• Other regulated and safe entry

The complementary pathways provide access to protection to refugees while enhancing their self-reliance. Moreover, it also eases pressure on some host countries by promoting a fair share of responsibilities.

Contact an Immigration Law Attorney

The nuances of immigration laws, particularly when they intersect with human rights, can be intricate. Various factors come into play in the adjudication of asylum and refugee cases. These factors may include public health derivatives, agreements with other countries, and recent global events. With these continuous changes in the immigration landscape, it is crucial to stay updated. It is also helpful to see the legal advice of an immigration law attorney.

If you or your loved ones are going through the immigration process, it is recommended that you consult an immigration attorney. They can assist you with understanding the rules and regulations that apply to your case. They can also give a better understanding of the laws and executive orders that may affect your situation. The legal advice of an immigration law attorney may also be helpful for those appearing before an immigration judge.