Asylum is a form of humanitarian relief meant to protect immigrants who cannot return to their home countries because they have been harmed or fear they will be harmed in the future based on one of the five protected grounds. Applicants for asylum must prove that they have a “well-founded fear of persecution based on their: race, religion, nationality, political opinion, or membership in a particular social group by an actor that the government is unwilling or unable to control. 8 U.S.C.§1101(a)(42)(A). You may include your spouse and children under 21 in your application for asylum as long as they are living in the United States. If you are granted asylum, you may apply for your green card within one year of your grant of asylum. Once your application for asylum is granted, you may also petition for your spouse and children to accompany you if they are residing abroad.
To be eligible for asylum, you must apply within one year of entering the United States, or if you entered on a valid visa, within one year of your visa expiring. By filing an application for asylum within this one-year window, you will automatically be eligible to obtain a work permit 150 days after you submit your application. There are several exceptions to this one-year deadline, such as for unaccompanied minors, and for those who suffer from a debilitative mental illness which prevented them from filing on time. If you do not qualify for one of the enumerated exceptions to the one-year filing deadline, you may still be eligible for withholding of removal. For withholding of removal, you must show that it would be “more likely than not” you would be persecuted in your home country, a higher standard than for asylum. If granted this relief, you cannot be removed to your home country and you will be eligible for a work permit as long as you remain in the United States.
Whether you are applying affirmatively for asylum, or defensively -once you have already been placed in removal proceedings, it is important to consult with an experienced immigration attorney to make sure you present all of the evidence that substantiates your case. After passage of the REAL ID Act, if you do not present evidence that was reasonably available to corroborate your story, even if your testimony is otherwise credible, the lack of supporting evidence in your case can be reason alone to deny your application.
Temporary Protected Status (TPS)
Temporary Protected Status, or TPS is a form of humanitarian relief granted to eligible individuals from countries designated by the Secretary of the Department of Homeland Security. The secretary designates certain countries for TPS where nationals of that country could not safely return, due to armed conflict, natural disaster, or other extraordinary, temporary conditions. In order to be eligible, nationals of designated countries must have been physically present and resided in the United States during the country specific period, www.uscis.gov/tps present in the United States during the requisite time period (which varies from country to country), have applied during the initial registration period, or be eligible for late TPS.
Benefits of TPS
- You cannot be removed from the United States while you have TPS status
- You can obtain a work permit valid through the re-registration period for your country
- You can request an advanced parole to return to your country of origin in the event of an emergency, or to visit family members
While you cannot apply for a green card simply based on having TPS, due to a recent change in the law, you may be eligible to apply for a green card if you have an immediate relative who can petition for you. If you travel on advanced parole and an immediate relative petitions for you, (i.e. a U.S. citizen spouse, U.S. citizen child over 21, or a U.S. citizen parent if you are under 21) you can apply for a green card and will no be subject to the 3 and 10 year bars (for unlawful presence in the U.S. of 6 months and 1+ years).
Common grounds of ineligibility or denial include:
- Conviction for two misdemeanor offenses or one felony offense
- Failed to re-register for TPS during the re-registration period without good cause
- Failed to provide evidence of continuous physical presence and continuous residence in the United States
If you failed to renew your TPS application, but are otherwise eligible for TPS, you may apply for TPS de Novo before an Immigration Judge, even if you do not have a good reason to have failed to renew your TPS.
Even if you did not apply for TPS during the initial registration period, if you meet all other criteria, you may still be eligible if during that initial registration period of your country’s designation you:
- Were a nonimmigrant, were granted voluntary departure, or any relief from removal,
- You had an application for change of status, adjustment of status, asylum, voluntary departure, or other relief from removal which was pending or subject to further review or appeal,
- You were a parolee or had a pending request for re-parole, or
- You are a spouse of an individual who is currently eligible for TPS
AND you register for TPS while in such status or within 60 days of the expiration or termination of the above conditions
- You were a child, unmarried and under 21, and your parent is currently eligible for TPS. You may still be eligible for late initial filing even if you are now over 21 years old or married.