Overview of Refugee Status

 

Introduction: Refugee Status

refugee status“Refugee” has a very specific meaning in U.S. immigration law. A refugee is a foreign national who was persecuted in his or her country of nationality or last habitual residence and is either unable or unwilling to avail him or herself to the protection of his or her country of nationality or last habitual residence. Unlike asylees, who seek status from within the United States, refugee applicants must be referred to the U.S. Refugee Admissions Program (USRAP) from abroad. If an alien is approved for refugee status, he or she will be resettled in the United States. The spouse and unmarried child(ren) of a refugee may be eligible for resettlement as well.

Definition of “Refugee”

The definition of “refugee” is found in section 101(a)(42) of the Immigration and Nationality Act (INA). To start, with limited exceptions, a “refugee” is a person who is outside any country of nationality (or having no nationality, country of last habitual residence) and who is unable or unwilling to avail him or herself to the protection of that country on account of a well-founded fear of persecution on account of:

  • Race;
  • Religion;
  • Nationality;
  • Membership in a particular social group; or
  • Political opinion.

The statute states that a person who has been forced to abort a pregnancy or undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo either procedure or for other residence to a coercive population control program, shall be deemed to have been persecuted on account of political opinion. Furthermore, a well-founded fear of such persecution shall be deemed to have a well-founded fear of persecution on account of political opinion.

The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person in any of the ways that may make a person classifiable as a refugee. This prohibition applies even to persons who themselves were persecuted.

It is important to note the specificity of the refugee definition. In order to be classifiable as a refugee, a person must have been persecuted, or have a reasonable fear of persecution, in one of the statutorily enumerated ways. Fleeing violence or extreme poverty does not, by itself, make a person classifiable as a refugee. Persons who have humanitarian concerns and are seeking U.S. immigration benefits may seek to go through normal immigration procedures or seek a U.S. immigration remedy such as humanitarian parole.

Under special circumstances, the President may, after appropriate consolation with the Congress, specify any person who is within his or her country of nationality (or, having no nationality, country in which he or she is habitually residing) and is being persecuted or has a well-founded fear of persecution, as a refugee.1

The Board of Immigration Appeals (BIA) held in Matter of B-R- [PDF version] that a person with dual nationality who fails to establish that the second country would not grant him or her protection is not admissible as a refugee.2

Ineligibility for Refugee Status

A person who is “firmly resettled in any foreign country” may not be admitted as a refugee.3 Unless an applicant for refugee status can prove otherwise, an offer of permanent residency or citizenship by another country will be considered “firm resettlement.”

Persons who are immediate relatives of U.S. citizens (and therefore eligible to apply for family-based immigrant visas) or who are admissible as special immigrants shall not be processed as refugees unless it is determined to be in the public interest.4 Such persons may apply for immigrant visas through the regular procedures.

A person must be admissible to the United States in order to be admitted as a refugee. Even if the applicant is otherwise qualified, certain inadmissibility grounds will be fatal to the application. Under section 207(c)(3) of the INA, the following inadmissibility grounds are automatically waived for applicants for refugee status:

  • Seeking to enter the United States to work without labor certification;5
  • Public charge grounds;6
  • Seeking admission without valid documents;7
  • Person who is a graduate of a medical school not accredited by the United States seeking to enter the United States to perform services as a member of the medical profession.8

Waivers are never available for inadmissibility for certain drug trafficking offenses9 and security and related grounds.10

Waivers are available on a discretionary basis for all other grounds of inadmissibility. Waivers for refugee applicants may be granted for humanitarian purposes, to assure family unity, or because it is determined to be in the public interest.11

Inadmissibility waiver applications are filed on the Form I-602, Application By Refugee For Waiver of Grounds of Excludability.

Normal Flow and Emergency Flow Refugees

Each year, the President, after appropriate consultation with Congress, will set refugee admission targets for the fiscal year. Refugees who qualify as normal refugees are admitted through regular procedures.12

The President, after appropriate consultation with Congress, may determine that:

  1. an unforeseen emergency refugee situation exists;
  2. the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and
  3. the admission of these refugees cannot be accomplished under the normal procedures.13

Under the emergency flow procedure, the President may designate persons who are within their countries of nationality or habitual residence for refugee protection. One example of this happening on a large scale was in 1980, when 3,500 Cubans in the Peruvian Embassy in Havana were designated as refugees.14

Applying for Refugee Status

In order to apply for refugee status, an applicant must receive a referral to the U.S. Refugee Admissions Program (USRAP). The United Nations High Commissioner for Refugees (UNHCR) may refer refugee candidates to the USRAP. Persons from groups identified by the Department of State (DOS) may also be referred for refugee interviews. The refugee applicant must be from an area from which refugees may be admitted from for the fiscal year.

In order to be a candidate for refugee status, the candidate must fall under one of the DOS's processing priorities. The following is a table of the current processing priorities courtesy of the United States Citizenship and Immigration Services (USCIS) website:

Priority 1: Cases that are identified and referred to the program by the United Nations High Commissioner for Refugees (UNHCR), a United States Embassy, or a designated non-governmental organization (NGO).
Priority 2: Groups of special humanitarian concern identified by the U.S. refugee program.
Priority 3: Family reunification cases (spouses, unmarried children under 21, and parents of persons lawfully admitted to the United States as refugees or asylees or permanent residents (green card holders) or U.S. citizens who previously had refugee or asylum status). For information on the current nationalities eligible for Priority 3 processing, see the “U.S. Department of State” page.

 

Source: http://www.uscis.gov/humanitarian/refugees-asylum/refugees/united-states-refugee-admissions-program-usrap-consultation-worldwide-processing-priorities [link]

The USCIS notes that while meeting the conditions of one of the processing priorities is a prerequisite to being granted a refugee interview, it does not guarantee that the candidate will ultimately be admitted as a refugee.

After referral, the applicant must file the Form I-590 to apply for refugee status.15 If the applicant is 14 years or older, he or she must also file a G-325A Biographic Information form and fingerprints.16 The applicant will then be required to undergo a medical examination.17 In order to be ultimately eligible for refugee status, the applicant must secure a sponsor (either a person or organization) that will ensure that he or she would have employment and housing upon entry as a refugee.18 This can be a family member, individuals, or a refugee resettlement organization.

In the event that a refugee application is approved, the refugee will have four months to present him or herself for admission to the United States.19 It is important to note that if the refugee does not seek admission within 4 months of being approved for refugee status, the application may be considered invalid. There is no provision to appeal a denied refugee application.20

The Attorney General has the authority to select refugees for admission for reasons other than the priority date on the refugee's application. The Attorney General may admit refugees based upon reuniting families, close association with the United States, compelling humanitarian concerns, and public interest factors.21

Derivative Family Members of Refugees

The spouse, minor unmarried child(ren) [under 21], and minor unmarried step child(ren) of a refugee are eligible to be admitted as refugees whether accompanying or following to join the principal.22 In order to be eligible, the family member's relationship to the principal refugee must have existed prior to the refugee's admission, and must continue to exist at the time of the filing for accompanying or following-to-join benefits. Children who are in utero at the time of the principal's admission as a refugee will also be eligible to accompany or follow to join.23 Furthermore, the derivative refugee must be admissible to the United States.24 Qualifying family members who are already in the United States may be eligible for derivative refugee benefits.

The following persons are not eligible to accompany or follow to join a principal refugee:

  1. A spouse or child who has previously been granted asylee or refugee status;
  2. An adopted child, if the adoption took place after the child became 16 years old, or if the child has not been in the legal custody and living with the parent(s) for at least 2 years;
  3. A stepchild, if the marriage that created this relationship took place after the child became 18 years old;
  4. A husband or wife if each/both were not physically present at the marriage ceremony, and if the marriage was not consummated;
  5. A husband or wife if it is determined that such alien has attempted to enter into a marriage for the purpose of evading immigration laws;
  6. A parent, sister, brother, grandparent, grandchild, nephew, niece, uncle, aunt, cousin-in-law.25

Applications for family members of principal refugees must be filed on the Form I-730. The Form I-730 for a derivative refugee following to join must be filed within 2 years of the principal's admission into the United States (unless USCIS determines, in its discretion, that the period should be extended for humanitarian reasons). Persons who obtain refugee status by virtue of a qualifying relationship to a principal are not eligible to request derivative refugee benefits for family members. Once a petition is approved for a derivative refugee, there is no time limit on when he or she must be admitted to the United States provided that the qualifying relationship to the principal continues to exist.26

Admitted family members of refugees are counted against the annual refugee cap from the same country as the principal.27

Refugee Status

A refugee is provided with an employment authorization document incidental to admission. Refugees are required to obtain a refugee travel document before traveling from the United States. Furthermore, even with a travel document, a refugee may run into complications if he or she travels to his or her country of nationality or last habitual residence where he or she was persecuted. To learn about travel for asylees and refugees in great detail, please follow this link.

A refugee is required to apply for adjustment of status one year after entry as a refugee as a refugee.28 This also applies for family members. If the refugee is granted adjustment of status, he or she will be considered to have been a permanent resident as of the date of his or her arrival in the United States as a refugee.29 If the refugee fails to apply for adjustment of status, or is denied adjustment, he or she will be returned to the custody of the Department of Homeland Security (DHS) as an applicant for admission to the United States.30 A person denied adjustment as a refugee will not have the right to appeal the denial, but may apply for permanent residency in removal proceedings.31

There are two ways in which a refugee may be subject to removal before applying for adjustment of status. Refugee status will be terminated if it is determined that the person was not a refugee within the statutory definition of a refugee at the time in which he or she was admitted.32 The BIA held in Matter of D-K- [PDF version] that because a refugee is considered “admitted” to the United States, he or she may be placed in removal proceedings if charged with a deportability ground under section 237 of the INA after admission.33

Advice: Refugee Status

Demonstrating eligibility for refugee status is a complicated process that relies upon the applicant obtaining a referral, demonstrating eligibility for refugee status, and finding a sponsor. This process is even more complicated if the applicant has inadmissibility concerns. Any person seeking refugee status should consult with an experienced immigration attorney in refugee matters for guidance on navigating the refugee application process. If it happens that applying for refugee status is impossible in a given case, an experienced immigration attorney will be able to assess whether there are other forms of immigration relief that may be available.

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  1. INA § 207(e); for FY 2016, the President has determined this applies to persons in Cuba, Eurasia and the Baltics, Iraq, Honduras, Guatemala, and El Salvador.
  2. Matter of B-R-, 26 I&N Dec. 119 (BIA 2013)
  3. INA § 207(c)(1)
  4. 8 C.F.R. § 207.1(c)
  5. INA § 212(a)(5)
  6. INA § 212(a)(4)
  7. INA § 212(a)(7)(A)
  8. INA § 212(a)(5)(B)
  9. INA § 212(a)(2)(C)
  10. INA §212(a)(3) [except for those listed under a(3)(D) which is for membership in the Communist or any other totalitarian party]
  11. INA § 207(c)(3); 8 C.F.R. § 207(3)(b)
  12. INA §207(a)
  13. INA § 207(b)
  14. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 598
  15. 8 C.F.R. § 207.1(a)
  16. 8 C.F.R. § 207.2(a)
  17. 8 C.F.R. § 207.2(b)
  18. 8 C.F.R. § 207.2(c)
  19. 8 C.F.R. § 207.4
  20. Id.
  21. 8 C.F.R. § 207.5
  22. 8 C.F.R. § 207.7(a)
  23. 8 C.F.R. § 207.7(c)
  24. INA § 207(c)(2)
  25. 8 C.F.R. § 207.7(b)(1)-(6)
  26. 8 C.F.R. § 207.7(d)
  27. Refugee Processing Guidelines (DOS) at 27
  28. INA § 209(a)(1); 8 C.F.R. § 209.1(a)
  29. INA § 209(a)(2)
  30. INA § 209(a)(1)(C)
  31. 8 C.F.R. § 209.1(e)
  32. INA § 207(c)(4); 8 C.F.R. 207.9
  33. Matter of D-K-, 25 I&N Dec. 761 (BIA 2012)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 596-98, 695-97 Print. Treatises & Primers

USCIS, “The United States Refugee Admissions Program (USRAP) Consultation & Worldwide Processing Priorities,” (July 17, 2015), available at http://www.uscis.gov/humanitarian/refugees-asylum/refugees/united-states-refugee-admissions-program-usrap-consultation-worldwide-processing-priorities [link]