Foreign nationals who are arriving or physically present in the United States may apply for asylum based upon a well-founded fear of persecution in their home countries on account of race, religion, nationality, membership in a particular social group, or political opinion. Generally, an applicant for asylum is required to file within one (1) year of entry to the United States, but there are exceptions to the 1-year filing deadline related to an inability or incapacity to file the application in a timely manner. Foreign nationals who fear persecution in their home countries and are otherwise eligible for asylum are encouraged to consult with a competent immigration attorney about relevant exceptions to the 1-year deadline as well as other possibilities for relief.

Applicants for asylum are eligible for work authorization in the United States 180 days after filing the asylum application and they may continue to renew the work authorization for as long as the asylum application remains pending. However, it is important to note that the 180-day eligibility clock for work authorization may stop running for various reasons, including certain actions or inactions by the applicant.

A foreign national who is granted asylum (known as an asylee) may reside and work in the United States indefinitely and may apply for a Refugee Travel Document which permits travel abroad to any country other than to the country of claimed persecution. An asylee who is physically present in the United States for 365 days after being granted asylum is eligible for permanent resident status in the United States. Moreover, an asylee who has been granted permanent residence may be eligible to apply for U.S. citizenship four (4) years later.

Affirmative Application for Asylum: An applicant who is not in removal proceedings before an Immigration Judge must file the asylum application with U.S. Citizenship and Immigration Services (USCIS) (known as an affirmative asylum application). USCIS will interview each applicant to determine whether asylum should be granted. If USCIS cannot approve the application after the interview, then the applicant may be referred to an Immigration Judge for removal proceedings, where the applicant may renew the asylum application.

Defensive Application for Asylum and Other Forms of Relief: An applicant who is in removal proceedings before an Immigration Judge must file the asylum application with the Immigration Court (known as a defensive asylum application). Moreover, an applicant for asylum who is in removal proceedings may also apply for other forms of relief from removal, if eligible, including Withholding of Removal and protection under the Convention Against Torture (CAT), both of which protect foreign nationals from harm or mistreatment in their home countries. However, only a grant of asylum by the Immigration Judge confers eligibility for permanent residence.

SIJ Status is available to foreign nationals who are physically in the United States and who demonstrate that they are under the age of 21, should not be returned to their home country, and cannot be reunited with a parent due to abuse, abandonment, or neglect.

A petition for SIJ Status must include a valid order (or orders) issued by a competent state court declaring the foreign national to be a dependent of the court or otherwise placing the foreign national under the care or guardianship of a third party. The state court must also determine that the foreign national should not be returned home and cannot be reunited with a parent for one of the reasons already stated. The state court portion of the case must be completed before the minor turns 21 in New York, but in some states, before the minor turns 18.

Generally, a foreign national who seeks SIJ Status may file the petition concurrently with an application to adjust to permanent residence in the United States. For nationals of certain Central American countries, there may be a waiting period of approximately two (2) years before the adjustment of status application can be filed However, an applicant who is in removal proceedings before an Immigration Judge may not file the application to adjust to permanent residence until the removal proceedings are terminated by the Judge.

• U Nonimmigrant Status (also known as a U Visa) is available to victims of specified crimes who have suffered substantial mental or physical abuse and who cooperate with law enforcement and government officials in the investigation or prosecution of the criminal activity. Congress created the U Nonimmigrant program to protect victims and to ensure that victims can come forward and cooperate with law enforcement regardless of immigration status. Foreign nationals who have been in valid U Nonimmigrant Status for 3 years may apply for permanent residence in the United States, provided they meet certain physical presence requirements and have not unreasonably refused to cooperate with law enforcement during that time period.

• T Nonimmigrant Status (also known as a T Visa) is available to victims of human trafficking crimes who comply with reasonable requests from law enforcement to assist in the investigation or prosecution of human trafficking criminal activity. Congress created the T Nonimmigrant program to protect human trafficking victims and ensure that victims can cooperate with law enforcement in its efforts to investigate, dismantle, and disrupt human trafficking networks and prosecute human traffickers. Foreign nationals who have been in valid T Nonimmigrant Status for 3 years may apply for permanent residence in the United States, provided they meet certain physical presence requirements, have complied with all reasonable requests for assistance in the investigation or prosecution of human trafficking activities, and are otherwise of good moral character. Moreover, foreign nationals in T Nonimmigrant Status must demonstrate that they would suffer extreme hardship if they were forced to leave the United States.

Violence Against Women Act (VAWA): The Violence Against Women Act (VAWA) permits certain foreign nationals who have suffered abuse at the hands of a U.S. citizen or permanent resident family member to immigrate to and live permanently in the United States without the direct involvement of the abuser. Congress enacted the VAWA provisions to address serious concerns about domestic violence in the United States, including the misuse of the immigration system to prevent foreign national spouses, children, and parents from reporting or escaping abuse.

A foreign national seeking permanent residence pursuant to VAWA must file a self-petition with U.S. Citizenship and Immigration Services (USCIS) with evidence of the family relationship and the abuse or mistreatment. If the abuser is a U.S. citizen spouse or parent, then the foreign national may file the self-petition concurrently with an application to adjust to permanent resident status as long as the foreign national is not in removal proceedings before an Immigration Judge.

• Deferred Action for Childhood Arrivals (DACA):

  • In June 2012, the U.S. government announced a federal policy known as Deferred Action for Childhood Arrivals (DACA), which permits certain foreign nationals to request reprieve from removal if they began living in the United States continuously before their 16th birthdays, continuously resided in the U.S. since June 15, 2007, and were physically present in the U.S. with no lawful status on June 15, 2012, and at the time of making the DACA request. In addition to the age restriction and residence requirements, foreign nationals requesting DACA must demonstrate that they meet certain education requirements, have not been convicted of criminal offenses, and do not pose a danger to the national security or public safety.

    If a foreign national’s application for DACA is approved, then the foreign national will receive work authorization and may, in some limited circumstances, receive advance permission to re-enter the United States after brief travel abroad. Moreover, DACA recipients are not considered priorities for removal or deportation and do not accrue unlawful presence in the United States during the time periods in which DACA status is maintained.

• Temporary Protected Status (TPS)

  • Temporary Protected Status (TPS) is a temporary benefit that permits foreign nationals to remain in the United States and work lawfully if their home countries have been designated by the Secretary of Homeland Security as unsafe for return. Foreign nationals who have been granted TPS may not be removed or deported from the United States as long as their TPS remains valid and, in addition to work authorization, foreign nationals in TPS may receive advance permission to re-enter the United States after brief travel abroad (called “advance parole”). The countries currently designated for TPS can be found at https://www.uscis.gov/humanitarian/temporary-protected-status