WHEN ARE YOU ELIGIBLE TO OBTAIN A GREEN CARD THROUGH ASYLUM?

By Shah Peerally, Attorney at Law.

There are many roads to obtaining a “Green Card” (Legal Permanent Residence) in the United States. One of these paths is filing an asylum.  This article will briefly describe the basic requirements to be eligible for an asylum application and the general process.

 BASIS FOR FILING AN ASYLUM

 One can file an asylum application with the Department of Homeland Security and United States Citizen Immigration Services (“USCIS” formerly INS) if one has a genuine "well-founded fear of persecution" or past persecution.   

It is very important not to file an affirmative or defensive asylum application which might be considered frivolous because there are dire consequences to both the applicant and the practitioners who assist in such endeavors. Among the requirements to be eligible for Asylum is the one-year bar to filing. This means that an applicant can file an asylum application only within one year from his or her date of entry in the United States unless certain exceptions apply. Examples of those exceptions include but are not limited to if the applicant has maintained legal presence in the United States, change of country conditions and change of conditions pertaining to the applicant himself or herself. For example, Ram entered the United States from Fiji three years ago legally (with a visa) or illegally (without a visa). During this time a coup took place in Fiji and as a result of this coup,  Ram’s life is now in danger, he now fears for his life or persecution because of  political views. Note that this fact scenario assumes that Ram’s life was not in danger before the coup. But now due to the new change in country conditions (The Coup), Ram will be eligible to file for an asylum although Ram has been out of status in the United States and three years have passed. Of course if Ram just entered the United States (legally or even illegally) within one year, Ram does not have to prove change of country conditions. We have used this example only because it was a good hypothetical based on the current situation in Fiji. However, remember that an applicant should have a genuine reason for applying for an asylum. Asylum entails numerous other issues. One of them is relocation. This means that if someone is firmly reestablished in another country than the country against which one wants to file asylum, it might be difficult for one to obtain asylum.

Asylum can be affirmative or defensive. Affirmative asylum is when a person enters the United States and file and asylum before this person is placed in removal proceedings ( also commonly known as deportation). An asylum is defensive if one person is  placed into removal proceedings, and then applies for the asylum in front of an immigration judge. A defensive asylum will usually be filed in immigration court.

    OTHER FORMS OF BENEFITS OR RELIEF 

In addition, apart from asylum one can filed also for protection under the Convention Against Torture (CAT) or for withholding of removal. Fortunately, both CAT and withholding are not subject to the one year bar. However, the threshold is much higher to benefit from CAT or withholding. It is highly recommended to consult an experienced immigration practitioner before filing similar applications.  

THE PROCESS 

Generally, once you file your case you will be called for an interview within 30 to 45 days. The interview will among other things appraise whether someone is credible, and if so whether this person has a ground for asylum. After the conclusion of interview the Asylum officer will give you a date to come and pick the decision.  The decision is usually one of the following: 1) an approval; 2) a recommendation of approval after a security check; or 3) a referral to the immigration court. When  the case  is referred to an Immigration Judge you can present your case again in front of a judge.  The judge will make a determination whether to grant the asylum application.

If your case is approved either with an asylum officer or in immigration court you will be eligible to stay and work in the United States.  Usually after one year of approval you will be eligible to file for an “adjustment of status” to obtain your “Green Card”.  It is good to note that an asylum can be revoked if conditions in the country change or if you violate the terms of the asylum. If your case is denied by the immigration court, then you have a right to appeal with the Board of Immigration Appeals (BIA) within a restricted number of days.  At that point, it will be more than recommended to use the services of an immigration attorney to help you in your case.

Although the steps seem to be very simple the content and requirement for an asylum case requires knowledge of immigration law especially if you have any of the above mentioned issues.  Again, we would highly recommend to contact an immigration attorney to help you in this application. Also note that there are other issues and conditions that are required to file an asylum application which we have not mentioned in this article.

As we have stated earlier, there are numerous other ways to obtain a Green Card namely if a family member or a spouse petition for you.  Such petitions usually start with a form I-130, Petition for an alien relative and then once the immigrant visa is available, file for adjustment of status. Note that US citizen spouse and parents with US citizen child below 21, are able to obtain immediate adjustment of status. You can check on the USCIS website (www.uscis.gov) or an immigration attorney for more information. You can also check our website regarding more information. You can also obtain a Green Card through employment or business based petitions. But we will cover this topic in a later article.

As you can guess, immigration law has become a complex area of law, therefore it is advisable to always consult an immigration attorney before filing any sort of petition with the Immigration and Citizenship services.  It is imperative that you check whether the immigration practitioner who is representing you is a licensed attorney or a person licensed to practice in immigration law. If  the practitioner  is licensed you might want to ask where that person is licensed and if he or she can show you his or her license. This will definitely avoid you a lot of future problems!

 Please note that the above is purely informational and does not represent legal advice.  You should consult with an experienced immigration attorney before moving forward with any immigration application.  

 www.peerallylaw.com Ph:510 742 5887