Tag Archives: asylum

Humanitarian Visa: Asylum

By Coleman Jackson, Attorney & Counselor at Law
November 29, 2021

Humanitarian Visa: Asylum

Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution in their home country due to race, religion, nationality, membership in a particular social group, and political opinion. There are many reasons why people around the globe seek to rebuild their lives in a different country. Some people leave home to get a job or an education. Others are forced to flee their homes due to persecution or human rights violations; such as, torture, wars, famines, and domestic violence. Millions flee their native lands each year due to armed conflicts or other human-made crises or natural violence, climatic disasters and upheaval. Some no longer feel safe at home and might have been targeted just because of who they are or what they do or what they believe – for example, many people have been targeted for persecution, torture and other forms of unspeakable human rights abuse because of their ethnicity, religion, sexuality, or political opinions.

 

What is Asylum?

 

What is Asylum?

Asylum is a protection in the law granted to foreign nationals already in the United States or arriving at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country:  A refugee cannot obtain protection in their home country due to past persecution or a well-founded fear of being persecuted in the future “on account of their race, religion, nationality, membership in a particular social group, or political opinion. ”The United States Congress incorporated this definition of a ‘refugee’ into U.S. immigration law in the Refugee Act of 1980.

Asylum affords more protections than withholding of removal. For example, those granted asylum are allowed to work, bring their immediate families to the United States, apply for a Social Security card, request permission to travel overseas, and access public assistance, such as Medicaid or Refugee Medical Assistance. Asylees also have a routine mechanism for adjusting to permanent resident status after one year in the United States. Once the individual becomes a permanent resident, he or she must wait four years to apply for citizenship. On the other hand, those granted withholding of removal due to the likelihood of either persecution or torture remain in a tenuous position. They can be removed at any time to a willing third country, though such offers rarely materialize. Also, they can work and sometimes receive public assistance but they cannot bring their immediate families to the United States. There is no provision for eventual adjustment of status to lawful permanent resident for immigrants granted withholding of removal status.

Both asylum and withholding of removal are filed on the same application (Form I-589). Asylum claims must generally be filed within one year of arrival in the United States, but there is no deadline for filing a withholding of removal application. Form I-589 (available on the USCIS Forms website) asks why the applicant is seeking protection and what he or she thinks would happen upon return to their home country. In addition, the form requires other information that may throw further light on the claim, such as past activities and organizational affiliations, current whereabouts and condition of family members, and the circumstances of departure and travel to the United States. Many applicants provide additional material, sometimes voluminous, including affidavits, news accounts, or human rights reports, including those from non-governmental organizations like Amnesty International or Human Rights Watch.  There are extreme consequences for filing a frivolous asylum application.  Word to the wise; be careful and meticulously comply with Form I-589 Instructions.

 

What is Asylum?

What is persecution?

To persecute means to harass, punish, injure, oppress, or otherwise cause someone to suffer physical or psychological harm.

U.S. immigration law does not list specific examples of the kinds of persecution that would qualify someone for asylum or refugee status. However, from the law that has been developed through court cases, we know that it can include such acts as threats, violence, torture, inappropriate imprisonment, or denial of fundamental human rights or freedoms.

Historically, for example, the need for asylum or refugee status has been recognized in situations where a foreign government has:

  • imprisoned and tortured political dissidents or supposed undesirables
  • fired weapons on protesters
  • committed genocide against a particular race
  • made sure that members of a specific religion were left out of the political process,
  • and much more.

Remember that the persecution must be connected to one of five grounds—race, religion, nationality, membership in a social group, or political opinion. So, for example, violence directed against gays and lesbians is recognized as persecution connected to membership in a social group. But violence against an individual who happens to have angered a local criminal might not have the necessary connection to one of the five grounds making it much more difficult for victims fleeing their countries due to criminal gangs to be eligible for asylum or refugee status from the U.S. government. The U.S. government has recognized persecution based on gender as falling in the “particular social group” category for purposes of asylum.  This recognition of gender persecution and domestic violence victims as a particular social group has in recent years permitted domestic abuse victims the opportunity to seek protection as refugees by filing an asylum application in the United States.  Also remember that asylum applicants fear of future persecution in their home country must be “well-founded.” This is an objective standard of fear; will a reasonable person similarly situated fear for their health, limb and life?

  Recent Developments in U.S. Asylum Policies and Practice:

Recent Developments in U.S. Asylum Policies and Practice:

Work Authorization Delayed:

Until about the middle of 2020, most asylum applicants received work authorization while their asylum cases were pending decision at the asylum office. Once more than 180 days prescribed by statute had passed after submitting their applications, asylum applicants were issued one year work permits. However, in June 2020, the Department of Homeland Security changed this work permit rule.  The DHS promulgated a new regulation prohibiting work authorization for 365 days after filing an asylum application and banning employment authorization for all asylum seekers who did not enter at a port of entry. Concurrently with its regulation to restrict asylum for all who did not enter at a port of entry, DHS took steps to limit the number of individuals who could file asylum applications at ports of entry. Subsequently, the United States suspended all asylum applications indefinitely due to COVID-19. As a result, the asylum offices and the immigration courts have monumental backlogs, causing applicants to wait months and years to adjudicate their claims.  Affirmative asylum applications can be pending in the asylum office for years.  Anyone seeking asylum in the United States must factor in the real possibility that they will not be able to work lawfully in the United States under current U.S. asylum policies and practices for well over 1 to 1.5 years after the asylum office accepts their application for processing.

However, you may be eligible to receive employment authorization based on a pending asylum application if you meet one or more specific requirements.  As in all immigration matters, policies and implementation priorities might change; these changes might impact which asylum applicants can be eligible for work authorizations and when they can apply for work authorization.

 

Review of Asylum Application Approval History

Review of Asylum Application Approval History:

Asylum officers have the authority to grant asylum to asylum applicants who satisfies the statutory standards. In the past, positive asylum decisionsran between 15 and 30 percent of affirmative asylum application filings. In 2013 asylum officers approved close to 50 percent of all affirmative asylum applications. The approval rate hovered near 20 percent in 2015 and 2016; the asylum application approval rate plummeted to approximately 10 percent in 2016 and 2017, and returned to roughly 20 percent in 2018 and 2019. See these approval rate statistics in the U.S. Citizenship & Immigration Servs., All Forms, Annual Reports, 2013–2019.

Summary:  File a Credible Asylum Application:

Even if you think you’re eligible for asylum or refugee protection in the United States; that is, you’ve experienced persecution based on one of the five grounds we have discussed in this blog; you still need to prepare an asylum application; but you must also supplement this application with evidence proving your claim for asylum. You can substantiate your claim for asylum in the U.S. with your own testimony, statements by witnesses, newspaper articles and other reports discussing your case or the human rights situation in your country, expert witness statements and opinions and other credible and germane evidence.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100

Podcast – Employment Authorizations for Immigrants: Who Qualifies and How to Apply?| LEGAL THOUGHTS

Published August 4, 2020

Podcast - Employment Authorizations for Immigrants: Who Qualifies and How to Apply?| LEGAL THOUGHTS

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation, and immigration legal matters.

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Mayra Torres, the Public Relations Associate of Coleman Jackson, P.C.

The topic of discussion is “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?” You can listen to this podcast by clicking here: 

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY:  Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY:  Coleman Jackson

Welcome to Immigration Thoughts

  • My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, and immigration law firm based in Dallas, Texas.
  • Our topic for today is: “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?”
  • Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant and Mayra Torres, Public Relations Associate.
  • On this “Legal Thoughts” podcast our law firm’s Public Relations Associate, Mayra Torres will be asking the questions and I will be giving the answers as she and I will be discussing: “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?”

Mayra Torres Introduces Herself to the Audience:

  • Hi everyone, I am Mayra. I am the Public Relations Associate at the tax, litigation and immigration law firm of Coleman Jackson, P.C. Right here in Dallas, Texas.
  • Now Attorney: this is a follow up on a podcast that we did a couple of weeks ago where you and I were discussing “Green Cards & Work Permits” during this dread…………full pandemic!
  • Let’s go deeper into immigrants and work authorizations in the U.S. First of all:
  • What are the different types of work permits and who qualifies to work in the United States?

Attorney Answers Question 1:

  • Wow Mayra; that is a gigantic question since there are over 50 or 60 different categories of work authorizations defined in the U.S. Immigration Nationality Act, or INA, 8 United States Code. Each of these categories apply to different categories of immigrants, non immigrants, and their family members. Each category has different qualifying criteria. The duration for each category may also differ depending upon the specific authorizing provision of the INA.
  • We might have to address your question in several separate podcast over the next few weeks or even months. Interested listeners should subscribe to our podcast. For now, I intend to cover maybe 10 categories of work permits in this particular podcast. And for the most part I will merely mention the technical references to the applicable INA Section numbers authorizing the particular work permit category. I will also try to leave out the legal jargon and speak in ordinary language to see if I can explain work authorizations so that normal people can understand the different categories of work permits and their specific qualifying requirements.

Mayra Comments on That Approach

  • Oh exactly attorney. Its best to explain this in simple, easy to understand words;so that, people can follow along and understand what you are saying; you know! I mean …talk in language that regular people can understand.
  • And oh yeah; we can have a series of conversations on this topic in future podcast. Anyone who wants to know more about work permits for immigrants can subscribe to our law firm’s podcasts. Okay let’s go… my first question is this:
  • What are the different types of work permits and who qualifies?

Attorney Continues with Answer of Question1:

  • I am going to start by discussing those classes of immigrants who are authorized to be employed in the United States without restrictions as to location or type of employment:
    1. An immigrant who is a Lawful Permanent Resident (with or without conditions pursuant to INA section 216). These are immigrants issued Form I-551 or Green Card by the Department of Homeland Security.
    2. An immigrant who is a lawful temporary resident of the U.S. pursuant to INA section 245A or section 210 of the Immigration Nationalization Act. These temporary residents of the U.S. have been issued an EAD or Employment Authorization Document.
    3. An immigrant who has been paroled into the U.S. under INA section 207 as refugee.Refugees in the U.S. have been issued an EAD or Employment Authorization Document.
    4. An immigrant who has been granted asylum under INA section 208. Asylum seekers whose applications have been pending for more than 90 days can also be granted a work authorization while their asylum applications are pending decision at the Asylum Office.
    5. An immigrant who has been granted Temporary Protected Status (TPS) under INA section 244 has been issued an Employment Authorization Document (EAD).
    6. Any immigrant who has been granted U-1 crime victims status pursuant to 8 CFR 214.4 are issued a work authorization so long as they are in that status.
    7. Any immigrant who has been granted VAWA status under the Violence Against Women’s Act has the authority to work in the United States as long as they are in that status.
  • All immigrants who are authorized employment incident to their status, must apply to U.S.Citizenship and Immigration Services (USCIS) for a work authorization with the exception of the Green Card holder and the immigrant granted VAWA status; a VAWA self-petitioner can request authorization to work directly on the Form I-360 Petition. And Green Card Holders or Lawful Permanent Residents have the authority to work anywhere.
  • Again, all work permits discussed so far falls into the category where the immigrant can be employed in the United States without restrictions as to location or type of employment. They can work anywhere. Now less turn to the category of work authorization which are restrictive as to location and employer.

Interviewer:  Mayra Torres, Public Relations Associate

Question 2:

  • You mean some immigrants are restricted as to who they can work for and when!
  • What kind of restrictions are we talking about here? You mean there are immigrants who can’t work for anyone they want and anywhere in the United States … they want?

Attorney Answers Question 2:

  • Yes Mayra; that is exactly right. Some immigrants are issued work permits that restrict who they can work for and where they can work in the United States. I am only going to cover about three in this podcast. These are the most popular types; but again, we might revisit this topic in future podcast. For now, I am going to limit my discussions of immigrants who are restricted by law to work for a specific employer or otherwise restricted to employment authorized in the INA to these three:
  • First: A non immigrant treaty trader in the E-1 category and treaty investor in the E-2 category pursuant to INA section 214.2(e) are restricted to working only for the treaty-qualifying company through which they attained their status. They cannot work for anyone else in the United States.
  • Second: A non immigrant student must have a valid F-1 student status and are restricted pursuant to INA section 214.2(f) to working no more than 20 hours per week when the school is in session or full-time when school is not in session if the student intends to and is eligible to register for the next term or session. Moreover, the INA provides that students can engage in employment in the form of curricular practical training (internships, cooperative training programs, or work-study programs which are part of an established school curriculum) after being enrolled as a full-time student for a full academic year. These employment matters are handled on campus by the Designated School Official at the student’s college or university on Form I-20.
  • Third: An intra-company transferee in the L-1 status pursuant to INA section 214.2(l) is authorized to work only for the employer who filed the petition through whom they obtained the L-1 status.An immigrant on L-1 status cannot work for anyone else in the United States. I might add that the type of work they can perform is also restricted to the representations made by their employer in their petition. They must be high-level managerial or executive level individuals coming to the U.S.to oversee some specified areas or providing expertise in growing the domestic enterprise.

Attorney Interview: By Mayra Torres

QUESTION 3:

  • Wow! Attorney thanks for giving such comprehensive overview of these 10 types of work permit categories.
  • I have so many more questions, such as,
    • What is the duration of each one of these work permits that you have discussed; and
    • Whether the immigrant’s family members, such as, their spouse, children, and parents can work too; and
    • How can an immigrant with a work permit get a Green Card (we might have covered that in our previous podcast on Green Cards, but I can’t remember your answer now)?
  • Maybe we can discuss those questions in future podcast or blogs or something.
  • But a big question right now with this pandemic deals with workers getting sick on their jobs.
  • Question number 3 is this one: Undocumented Immigrants are not authorized to work in the United States; so… what if they catch Covid-19 at work and get sick or …worst…dies…. Are they entitled to receive any money for lost wages or earnings?

Attorney Answers Question 3:

  • That is a very complex question and the law could be in flux because of federal, state, or local rules changes being discussed in many circles. These protections could impact whether employees can recover damages of any kind resulting from injuries allegedly sustained as the result of Covid-19.So, I will limit my answer to Texas law pre-Covid 19.
  • Well established law in Texas says that injured workers and/or contractors are not required to be U.S. citizens nor are they required to possess immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity due to injury on the job. There is case law that goes as far back as 1993 that holds this legal principle.
  • But the law in this area could change as law catch up with legislative and other changes at the federal, state, and local level as it pertains to the response to Covid-19. And let me just say, federal law can be an affirmative defense whenever it conflicts with state or local law. So bottom line; the answer to this question is unclear at this time.

Attorney’s Summary:  Coleman Jackson

  • Mayra thanks for asking some very important questions regarding work permits.
  • I know we did not answer all of the questions you might have on this very important immigration topic. We might revisit it in our future blogs, podcast, or videos on our U-Tube Channel. For now,we have to go.

Attorney’s concluding Remarks:

THIS IS END OF “LEGAL THOUGHTS” FOR NOW

  • Coleman Jackson, Attorney’s concluding remarks:
  • Thanks for giving us the opportunity to inform you about the Immigrant Work Authorizations in the U.S. We might discuss other aspects work permits and their requirements in follow up podcasts or blogs in the near future. If you want to see or hear more taxation, litigation, and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Subscribe to our podcast and Stay tune! We are here in Dallas, Texas and want to inform, educate, and encourage our communities on topics dealing with taxation, litigation and immigration. Until next time, take care.