When asylum is granted, it means that the asylee will have the opportunity to live and work legally in the United States and will eventually have the opportunity to apply for lawful permanent residence and citizenship.
However, the Department of Homeland Security can, at least theoretically, reopen the case and attempt to terminate asylum and seek the removal of the asylee if it is determined that any one of a number of conditions are met: that country conditions have fundamentally changed such that the asylee no longer fears persecution; that the asylee committed a serious crime, either persecutory in nature or non-political outside of the United States; that the asylee poses a threat to the security of the United States; that the asylee was firmly resettled outside the United States prior to her arrival; that the asylee may be removed pursuant to a bi-lateral agreement to a safe third country that will provide protections; that the asylee has voluntarily returned to her home country; or, that the asylee has acquired a new nationality.
Practically speaking, attempts to revoke asylum are rare without new evidence that the asylee has committed a serious crime in the United States or fraudulently obtained asylum. It is important to note, however, that asylum is not a permanent, guaranteed status for life in the United States. For that reason, it is essential to encourage all asylees to apply for lawful permanent residence one year from the date on which they were granted asylum.
32.1 Change of Address
It is very important that asylum seekers and asylees keep CIS apprised of any changes in address. If your client’s application for asylum is pending or has already been granted, she should file her change of address form with CIS. This form (AR-11) is available at uscis.gov/graphics/formsfee/forms/ar-11.htm. As with all forms sent to Immigration, the applicant should keep a copy of the form and mail it certified mail, return receipt requested. It is not generally necessary for the attorney to send in this form on the client’s behalf.
If the applicant has a case pending in Immigration Court, he must use form EOIR 33 which is available at www.usdoj.gov/eoir/eoirforms/eoir33/ICadr33.htm. This form should also be copied and mailed certified mail, return receipt requested. A copy of the form must also be served on the ICE district counsel.
Even after an asylum applicant has won asylum, she must continue to inform CIS of address changes. This is especially important while her application for legal permanent residence is pending. If the applicant moves after filing for residency and later misses correspondence from CIS, her application could be denied and she could have to re-apply, adding several years to her wait to become a resident.
32.2 Derivative Asylum for Spouse and Children
Immediate family members present in the United States and included in the original asylum application automatically receive asylum together with the principal applicant. “Immediate family members” include the asylee’s opposite sex spouse and unmarried children under 21 years of age. As with all other areas of immigration law, same sex marriages are not recognized for purposes of derivative asylum. Likewise, transgender applicants may or may not have their marriages recognized, depending on how complete the transgender spouse’s transition is and on what happens in this developing area of U.S. immigration law. (See www.immigrationequality.org/template.php?pageid=4 for updated information on this issue.)
Note: if the asylee won based on sexual orientation, but is still legally married to a spouse abroad, he is technically permitted to file a derivative application for her, but the application, acknowledging an ongoing opposite sex relationship, could lead to the underlying asylum application being reopened. If the applicant has minor children abroad, and testified about the opposite sex relationship that resulted in the children, he should be able to apply for derivative status for the children. The asylee must petition for immediate relatives within a two-year period after being granted asylum. This period may be extended for humanitarian reasons.
32.3 Eligibility for Employment and a Social Security Number
As an asylee, your client is automatically eligible to work in the United States, and DOES NOT need an Employment Authorization Document (EAD). See uscis.gov/graphics/lawsregs/handbook/Asylees031003.pdf.
Your client is eligible for an unrestricted social security card that along with proof of identity is sufficient to establish that she is eligible to work in the United States. See www.ssa.gov/immigration/documents.htm. Unrestricted social security cards are obtained by applying with the Social Security Administration (SSA). Asylees will need to bring the original grant of asylum to the SSA, along with other proof of identity and signature. This card is only available following a final grant of asylum, and will not be issued if the Department of Homeland Security has reserved appeal. Asylees with final grants should wait approximately ten days to two weeks following a grant to request an unrestricted card, and applicants will receive the cards in the mail roughly two weeks after they have applied. SSA will provide a letter detailing this process upon application, and this letter will be sufficient for applying for public benefits as an asylee.
While no asylee is required to possess an EAD, many asylees do not possess sufficient proof of identity to easily obtain identity documents, including state IDs or Drivers’ Licenses. Accordingly, many asylees who do not possess a valid passport or other government-issued picture/signature identity card choose to apply for an EAD. An EAD, valid for one year, is offered free of charge to asylees upon initial application, but subject to a fee for subsequent renewal applications.
Congress has recently recognized that asylees often need an identity document immediately to begin their lives in the United States, and recently decided that EADs would be automatically provided to persons granted asylum at the Asylum Office.
It should be noted that an EAD should not be used as a substitute for an unrestricted social security card and a state-issued ID card. The latter two documents should be used, as soon as they are available, as proof of eligibility to accept employment in the United States when completing an I-9 form with a potential employer.
Some potential employers illegally require that asylees present an EAD as proof of employment eligibility. Such a demand is document abuse, and should be reported to the Office of Special Counsel for Immigration-Related Unfair Employment Practices.
32.4 Public Benefits
Asylees are entitled to certain public benefits. For the first seven years after being granted asylum, asylees are eligible for Social Security Income, Medicaid, and Food Stamps, and a variety of other benefits and services. Eligibility for many of these programs may extend past the first seven years. However, most of these programs themselves are time-limited, and individuals may only be able to receive benefits for periods of three months to a year, depending on the programs. Other programs may be available continuously.
Asylees who would like to access public benefits should speak to a qualified public benefits counselor as soon as possible upon their final grant of asylum. Clients with cases on appeal or who possess a conditional approval or a recommended approval are not eligible for most benefits until the appeal is complete or a final approval is granted. Some benefits, such as Safety Net benefits only require that an applicant demonstrate PRUCOL (“permanently residing under color of law”) status and a pending application may be sufficient for this purpose. Additionally, in many states, HIV-positive foreign nationals can receive HIV/AIDS treatment and medication under the AIDS Drug Assistance Program (ADAP) regardless of immigration status.
Some benefits programs administered through the Office for Refugee Resettlement provide benefits available only to asylees, refugees, and victims of human trafficking. Such programs include refugee cash and medical assistance, and should be accessed through a licensed refugee resettlement agency. Other clients should contact the CLINIC Asylee Hotline at 1-800-354-0365 to be placed with a refugee resettlement agency. In addition to administering benefits programs and providing general public benefits counseling, these agencies often provide English classes, employment training and placement programs, mental health programs, youth and elderly services, and referrals to other social service agencies as necessary.
It is important for the asylee to understand that unlike most other foreign nationals who may apply for legal permanent residence, asylees are not required to prove that they are not likely to become a public charge. Thus, they can receive government financial benefits without jeopardizing their future ability to obtain permanent residence in the United States.
Asylees are required to report all income earned in the United States to the Internal Revenue Service (IRS) and to pay taxes on that income.
32.6 Selective Service Registration
All males in the United States between 18 and 26 years of age are required to register for the draft. Asylees and asylum seekers are not exempt. Failure to register may have implications for your client when he applies to become a U.S. citizen. Information about the Selective Service can be found at www.sss.gov. As a practical matter, since openly LGBT individuals cannot serve in the military, there is little chance that your client will be drafted.
32.7 International Travel
Asylees can travel outside the United States with refugee travel documents. 1 It is essential that the asylee not return to her home country until she has become a U.S. citizen and can travel with a U.S. passport. If the asylee does return to her home country, DHS could refuse to allow her to reenter the United States on the grounds that she implicitly no longer fears persecution.
Asylees must only travel with a United States issued Refugee Travel Document. If an asylee travels with the passport issued by the country from which she has been granted asylum, she can be seen as availing herself of the protections of her government which could lead to a finding by the U.S. government that she no longer needs asylum protection.
While asylees may have technical grounds of inadmissibility (such as unlawful presence in the U.S. or prior entry with a false passport), these immigration violations do not generally put an asylee at risk if he or she travels abroad. 2
If, however, an asylee has any criminal convictions in the U.S., he or she should consult with an immigration attorney before traveling outside the U.S.
Asylees should understand, however, that even after obtaining legal permanent residence, they will have to use a Refugee Travel Document to travel abroad. It is only after an asylee becomes a U.S. citizen that he will be eligible for a U.S. passport. Asylees should also understand that until they obtain U.S. citizenship they cannot travel back to their countries. When they apply to naturalize, they will have to list all international travel after obtaining legal permanent residence in the United States, and a DHS Official could re-open the asylum grant upon learning that the applicant traveled back to his country.
Additionally, HIV-positive asylees could, at least theoretically, be denied entry into the United States because they technically remain “inadmissible” even with asylee status. Again, it is safest to wait until after obtaining lawful permanent residence status to travel outside the United States.
Individuals who have won withholding of removal or relief under the Convention against Torture, can never travel abroad. Leaving the United States would amount to self-enforcement of a removal order and they would not be permitted to re-enter the United States.
32.8 Asylee’s Adjustment of Status to Permanent Residence
After having been granted asylum, an asylee is eligible to apply to adjust her status to legal permanent residence (“green card”) with CIS one year after being granted asylum. 3 Residents may submit petitions to sponsor certain family members – opposite sex spouses, minor children, and unmarried adult sons and daughters – for legal permanent residence.
To apply for adjustment of status, an asylee must prove that she: a) has been physically present in the United States for one year after having been granted asylum; b) remains a “refugee” (i.e. with a “well-founded fear of persecution,” etc.); c) has not been firmly resettled in any foreign country, and; d) is not “inadmissible” or warrants a waiver of applicable grounds of “inadmissibility.” 4
The asylee must file the following documents with CIS:
- Form I-485 and appropriate fee (or fee waiver request);
- Fingerprint fee (this fee cannot be waived);
- 2 passport style photographs;
- Form G-325A;
- Evidence of asylee status (copy of I-94 and letter granting asylum or decision by Immigration Judge) ;
- Birth certificate (if available);
- Proof that applicant has been living in the United States for the last year (such as copy of lease, bills, pay stubs, or receipt of government benefits);
- Proof of legal change of name (if applicant has legally changed her name since winning asylee status.
Until a change in the law in May 2005, there was a cap on asylee adjustments, permitting CIS to process just 10,000 applications per year. This cap has now been eliminated, but there is still a long backlog, which may be four years or longer.
Unlike most applicants for legal permanent residence, asylees are not required to prove that they are not “likely to become a public charge.” Thus, if an asylee has been receiving means-tested benefits such as public assistance or SSI, this will not prevent his eligibility for legal permanent residence. Also, adjustment applicants may request a waiver of the filing fee for the adjustment application if they can demonstrate that paying the fee would result in financial hardship. For further guidance on CIS fee waiver criteria, see the following CIS memos: uscis.gov/graphics/publicaffairs/newsrels/FeeWaiver03_29_04.pdf and uscis.gov/graphics/lawsregs/handbook/FeeWaiverGd3404.pdf.
Eventually, after filing, the applicant will receive an interview notice 5 along with a medical examination form that he will have to get completed for the interview as instructed. The medical examination requires an HIV test. Although HIV is a ground of inadmissibility, asylees and refugees are eligible to apply for a waiver on humanitarian grounds. An asylee files for a waiver using form I-602 and the HIV waiver supplement as page two. While an asylee who seeks an HIV waiver is not required to demonstrate that he has private health insurance in order to obtain a waiver, he will have to submit evidence that he does not present a danger to the public health and that the risk of the spread of infection by admitting him as a resident is minimal. This generally means that the applicant should submit an affidavit explaining that he understands the modes of transmission of HIV and does not present a danger to the public health. The applicant’s treating physician should also submit a letter explaining that the applicant has been counseled about HIV transmission and that he is compliant with his treatment regimen.
Applicants for adjustment of status who entered the United States with fraudulent documents (such as a passport purchased on the black market) will also have to submit an application for a waiver of inadmissibility. This waiver would also be submitted on form I-602. uscis.gov/graphics/formsfee/forms/i-602.htm .
Although the asylee’s asylum application and supporting documentation are part of her file with the CIS Officer, the adjustment interview will focus on eligibility for adjustment to permanent residence, not on the underlying asylum claim. If, however, there is a reason for the Officer to suspect that the applicant no longer fears returning to her home country, (for example, if the applicant has traveled home to her country, or if asylum was granted based on the applicant’s lesbian identity and she is now married to a man), then the Officer can ask questions about whether or not the applicant continues to meet the standard for asylee and/or whether or not the underlying asylum application was fraudulent.
A legal permanent resident is permitted to submit an application for naturalization to become a U.S. citizen five years after becoming a resident. However, once an asylee is granted adjustment to permanent residence, the date of admission is given as that of one year before the date of approval of the adjustment of status application, effectively reducing the wait to apply to naturalize to four years. 6
This status will afford the full protections under the law, and permanent, virtually irrevocable status in the United States. This final step in the immigration process may well be 10 years or more from the date your client files an asylum application. Advising your client of the on-going nature of proceedings with the Department of Homeland Security is imperative to the success of a new life in the United States.
- 8 C.F.R. § 223.1(b). ↩
- However, in an INS memo issued on September 25, 2000, then INS General Counsel Bo Cooper stated:
An asylee or refugee returning with a valid refugee travel document must be examined as to his or her admissibility. 8. C.F.R. Sec. 223.3(d)(2)(1). Webelieve that in the case of asylees, however, this requirement only applies to those grounds of inadmissibility that would also constitute grounds for termination of asylum under 8 C.F.R. Sec. 208.23. If an asylee arrives with a valid and unexpired refugee travel document and the inspecting officer determines that he or she is inadmissible, 8 C.F.R. Sec. 208.23(f) directs the INS to issue a notice of intent to terminate asylum and initiate removal proceedings under Sec. 240 of the Act. This would be an exercise in futility unless the ground of inadmissibility were also a ground of termination, such as an aggravated felony or national security related ground. By virtue of obtaining the refugee travel document, the asylee retains his or her asylum status unless that status is terminated under 8 C.F.R. Sec.§ 208.22.’ See 77 Interpreter Releases 1391.↩
- 8 C.F.R. § 209.2. ↩
- 8 C.F.R. § 209.2(a)(1)(ii); 8 C.F.R. § 209.2(a)(1)(iii); 8 C.F.R. § 209.2(a)(1)(iv); 8 C.F.R. § 209.2(a)(1)-(v). ↩
- Note: not all asylee adjustment applicants are interviews. Some applications are adjudicated entirely on paper by mail. If there is an issue which requires a waiver, such as HIV-positive status, or use of fraudulent documents, however, the applicant will almost certainly require a waiver. Also, since Immigraiton has speeded up processing asylee adjustments, they have been requiring the applicant to submit a medical examination form with the adjustment packet. ↩
- 8 C.F.R. § 209.2(f). ↩