Asylum & Humanitarian Immigration In The United States

Types of Asylum and Humanitarian Visas

1. Asylum, Withholding of Removal and Convention Against Torture
   Asylum is a protection granted to foreign nationals already in the United States or seeking entry at a port of entry who meet the definition of a refugee. To qualify for asylum, an individual must demonstrate a well-founded fear of persecution in their home country based on one or more of the following grounds:
   • Race
   • Religion
   • Nationality
   • Membership in a particular social group
   • Political opinion
     
     Withholding of Removal requires a higher burden of proof than asylum. The applicant must show that it is “more likely than not” that they would face persecution, compared to the lower standard of “well-founded fear” in asylum cases. Unlike asylum, withholding of removal does not lead to permanent residency (a green card). The protection only prevents removal to a specific country but does not grant any long-term immigration status.

      

     Protection under the Convention Against Torture requires a showing that the Applicant is more likely than not to be tortured if removed to their home country, it does not require the torture to be based on a specific protected ground.The protection does not grant any long-term immigration status.
     
     There are two primary types of asylum applications:

      

     Affirmative Asylum: Filed with U.S. Citizenship and Immigration Services (USCIS), an affirmative asylum application is made voluntarily by individuals who are not currently in removal proceedings. This process involves an interview with an asylum officer who will determine if the applicant qualifies for asylum.

     Defensive Asylum: A defensive asylum application is made as a defense against removal proceedings in immigration court. Individuals may apply for defensive asylum after being placed in removal proceedings by U.S. Immigration and Customs Enforcement (ICE). The case is heard by an immigration judge who decides whether to grant asylum or order removal.

1. Humanitarian Parole
   Humanitarian parole allows foreign nationals to enter the United States temporarily due to urgent humanitarian reasons or significant public benefit. It is not an immigration status and does not provide a path to permanent residence. Parolees may stay in the U.S. for the duration of the emergency or as determined by the Department of Homeland Security (DHS).
   
   Requirements:
2. • Demonstrate urgent humanitarian reasons or a significant public benefit.
   • Provide evidence supporting the need for temporary entry into the U.S.
   • Parole is generally granted on a case-by-case basis.
3. Temporary Protected Status (TPS)
   TPS is a temporary immigration status granted to nationals of specific countries experiencing ongoing armed conflict, environmental disasters, or other extraordinary conditions. While under TPS, individuals cannot be removed from the U.S., may obtain employment authorization, and may receive travel authorization.
   Requirements:
   • Be a national of a country designated for TPS by DHS.
   • Have been continuously physically present in the U.S. since the effective date of the most recent designation of your country.
   • Meet continuous residence requirements.
   • Not be inadmissible to the U.S. on certain grounds, such as criminal or security-related reasons.
4. U Visa (Victims of Crime)
   The U visa is designed for victims of certain crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement or government officials in the investigation or prosecution of criminal activity.
   
   Requirements:
   • Be a victim of qualifying criminal activity.
   • Have suffered substantial physical or mental abuse as a result of the crime.
   • Possess information about the criminal activity.
   • Be helpful, have been helpful, or are likely to be helpful in the investigation or prosecution of the crime.
5. T Visa (Victims of Human Trafficking)
   The T visa provides protection to victims of severe forms of human trafficking who have complied with any reasonable request for assistance in investigating or prosecuting human trafficking and who would suffer extreme hardship involving unusual and severe harm if removed from the U.S.
   
   Requirements:
   • Be a victim of a severe form of trafficking in persons.
   • Be physically present in the U.S. on account of trafficking.
   • Comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking.
   • Demonstrate that you would suffer extreme hardship involving unusual and severe harm if removed from the U.S.
6. VAWA (Violence Against Women Act) Self-Petition
   Under the Violence Against Women Act, individuals who have been abused by a U.S. citizen or lawful permanent resident spouse, parent, or child may file for a VAWA self-petition to obtain legal status in the U.S. without the abuser’s knowledge.
   
   Requirements:
   • Be a victim of battery or extreme cruelty by a U.S. citizen or lawful permanent resident spouse, parent, or child.
   • Have resided with the abuser.
   • Be a person of good moral character.
7. DACA (Deferred Action for Childhood Arrivals)
   DACA provides protection from deportation to individuals who were brought to the United States as children and who meet specific criteria. DACA recipients, often referred to as “Dreamers,” can receive work permits and are temporarily protected from deportation, although DACA does not provide a path to permanent residency or citizenship.
   
   Requirements:
   • Were under the age of 31 as of June 15, 2012.
   • Came to the U.S. before their 16th birthday.
   • Have continuously resided in the U.S. since June 15, 2007.
   • Were physically present in the U.S. on June 15, 2012, and at the time of the DACA request.
   • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED, or are an honorably discharged veteran of the Coast Guard or Armed Forces.
   • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
8. Parole in Place (PIP)
   Parole in Place is a discretionary option for certain undocumented family members of U.S. military personnel, veterans, and other specified individuals. PIP allows eligible individuals to remain in the U.S. and apply for adjustment of status without having to leave the country, which would otherwise trigger a bar to reentry.
   
   Requirements:
   • Be an immediate family member (spouse, parent, child) of a U.S. military service member or veteran.
   • Lack legal immigration status.
   • Have no significant criminal record or other issues that would make them ineligible for a favorable exercise of discretion.
9. Family Reunification Parole Programs
   This program is designed to facilitate family reunification for individuals from specific countries who have approved family-based immigrant petitions but are awaiting their immigrant visas. The program allows eligible beneficiaries to enter the U.S.on a temporary basis until their immigrant visas become available.
   
   Requirements:
   • Have an approved family-based immigrant petition (Form I-130).
   • Be a national of a country included in the family reunification parole program.
   • Await the availability of an immigrant visa.
   • Meet all other eligibility criteria as determined by DHS.

11. Family Unity Program 

On June 18, 2024, the Department of Homeland Security (DHS) announced a new process to consider, on a case-by-case basis, requests for certain noncitizen spouses of U.S. citizens who have been continuously physically present without admission or parole in the United States for 10 years or more; have no disqualifying criminal convictions; do not pose a threat to national security and public safety and pass vetting; are otherwise eligible to apply for adjustment of status; and merit a favorable exercise of discretion.

Requirements: 

• Be present in the United States without admission or parole;
• Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
• Have a legally valid marriage to a U.S. citizen as of June 17, 2024.
• Have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and should otherwise merit a favorable exercise of discretion.

Noncitizen children of spouses who are granted parole under this process may also be considered for parole on a case-by-case basis under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship with a U.S. citizen parent as defined by the Immigration and Nationality Act as of June 17, 2024. Updates to this program are ongoing, for more information about this program visit: https://www.uscis.gov/keepingfamiliestogether 

12. Cuban Adjustment Act

The Cuban Adjustment Act allows Cuban natives or citizens, as well as their spouses and children, to become lawful permanent residents one year after being admitted or paroled into the U.S.

Requirements:

• Be a Cuban national or native.
• Have been admitted or paroled into the U.S.
• Have been physically present in the U.S. for at least one year

13. Cancellation of Removal 

Cancellation of Removal allows certain non-citizens who are in removal (deportation) proceedings to remain in the U.S. and eventually apply for lawful permanent residency (a green card) if they meet specific requirements. There are different eligibility criteria depending on whether the applicant is a lawful permanent resident (LPR) or a non-permanent resident. Below are the requirements for both categories:

1. Cancellation of Removal for Lawful Permanent Residents (LPRs)

Requirements:

• Permanent Residency for at least 5 years 
• Continuous Residence in the United States for at least 7 years 
• No Aggravated Felonies

2. Cancellation of Removal for Non-Permanent Residents

Requirements:

• Continuous Physical Presence in the U.S. for at least 10 years 
• Good Moral Character
• Has not been convicted of select criminal offenses, and,
• Removal would result in exceptional and extremely unusual hardship to US citizen or lawful permanent resident family members.

Cancellation of Removal is a powerful form of relief but requires meeting stringent criteria and presenting a compelling case to the immigration judge. If granted, it can provide a pathway to lawful permanent residency and prevent deportation.

14. Prosecutorial Discretion

Prosecutorial discretion in immigration court refers to the authority of the Department of Homeland Security (DHS) to decide how to enforce immigration laws. This includes the ability to prioritize certain cases for removal while deferring action on others. Prosecutorial discretion can be exercised at various stages of immigration enforcement, including before, during, or after removal proceedings.

Requirements:

• Positive Equities: Factors like length of residence in the U.S., family ties, community involvement, or humanitarian concerns (e.g., health issues), other available forms of relief.
• Negative Factors: Criminal history, security risks, or recent illegal entry might weigh against discretion.
• Guidelines: DHS often follows guidelines or memos issued by the administration to determine eligibility, such as prioritizing cases involving national security, public safety, and border security.

15. Administrative Closure

Administrative closure is a procedural tool used by immigration judges to temporarily remove a case from the court’s active docket. This does not provide permanent relief but pauses the proceedings, allowing individuals to pursue other forms of relief or wait for developments that could affect their case, such as pending applications for visas or family petitions.

Requirements:

• Mutual Agreement: Both DHS and the respondent (the individual in removal proceedings) must typically agree to the closure but a judge can order this relief where appropriate even if DHS opposes.
• Reasonable Expectation of Relief: There must be a reasonable likelihood that closure will lead to a favorable outcome, such as the approval of a pending visa petition.
• Balancing of Interests: The judge will consider whether closure serves the interests of justice, including the respondent’s situation and the government’s enforcement priorities.

• The availability and application of these remedies can vary depending on current legal standards and policies. For example, under the Trump administration, the use of administrative closure was severely limited, but it has seen a resurgence under the Biden administration.

Prosecutorial discretion and administrative closure are important tools that can provide temporary relief from removal proceedings in immigration court. Both remedies require a careful evaluation of the individual’s circumstances and the prevailing enforcement priorities of the DHS.

16. Deferred Action For Workers In Support of Labor Agency Investigations

The Deferred Action for Workers in Support of Labor Agency Investigations is a U.S. Department of Homeland Security (DHS) initiative designed to protect undocumented workers who assist in labor rights investigations. This program provides temporary protection from deportation (deferred action) to workers who participate in or support investigations by labor agencies, such as the Department of Labor (DOL) or the National Labor Relations Board (NLRB). Workers granted deferred action under this program are also eligible to apply for employment authorization

Requirements:

• Labor Agency Involvement: The worker must be involved in a labor investigation initiated or supported by a recognized labor agency.
• A Statement of Interest from a labor or employment agency addressed to DHS supporting the request
• No Significant Criminal Record
• Positive Discretionary Factors

Distinction Between Affirmative and Defensive Applications

As previously mentioned, there are generally two ways of filing humanitarian applications: affirmatively and defensively. The key difference lies in the timing and context in which they are filed.

Affirmative Applications:
These are filed with USCIS by individuals who are not in removal proceedings. The process is initiated voluntarily by the applicant, and if the application is denied, the applicant may be referred to immigration court to present their case in a defensive posture.

Defensive Applications:
These are made by individuals already in removal proceedings as a defense to deportation. The application is filed with the immigration court, and the outcome is decided by an immigration judge.

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Navigating the complexities of asylum and humanitarian immigration under the U.S. immigration system requires a deep understanding of the laws, processes, and available protections. Our law firm specializes in providing expert guidance and representation in these areas, including filing both affirmative and defensive applications. We also offer robust defense strategies for individuals in removal proceedings, ensuring that every possible avenue for protection is explored.

Don’t wait to secure your future and protect your rights. Contact our firm today to schedule a free legal call and learn more about your options. Our experienced immigration attorneys are here to help you navigate the path to safety and stability in the United States. Book your legal call now to take the first step toward securing your immigration status.