Asylum & Humanitarian Visas

Asylum and Refugee Status

The main difference between Asylum and Refugee status is the location that an individual claims this legal status. Asylum can only be obtained by an individual who is already physically present in the United States of America or who has arrived at a port of entry within one year of their most recent entry into the country. Whereas Refugee status is obtained overseas and an individual only enters the United States after being granted this legal status.

The United Nations 1951 Convention and 1967 Protocol define a Refugee as "a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future 'on account of race, religion, nationality, membership in a particular social group, or political opinion.'”

Congress incorporated this definition into U.S. immigration law with the Refugee Act of 1980. As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status—either from abroad as a resettled refugee or in the United States as an asylum seeker.

Pursuant to the Refugee Act of 1980, the total amount of Refugees permitted in the United States is determined annually by the President of the United States. The figure is currently at 125,000.

During the pendency of your Asylum application, you are legally allowed to apply for Employment Authorization.

If you are granted this legal status, you are legally permitted to Adjust your status to a Legal Permanent Resident (i.e. Green-card) one year after your petition is approved. Four years after obtaining your LPR status, you are eligible to apply to become a U.S. Citizen.

U Nonimmigrant Status (U Visa)

The U nonimmigrant status (U visa) is a visa that is available for victims of enumerated crimes who have suffered severe mental or physical abuse as a result of the crime and were helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Congress created the U nonimmigrant visa with the of the Victims of Trafficking and Violence Protection Act in 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime. Additionally, it was enacted to incentivize such victims of enumerated crimes to cooperate with law enforcement without considering immigration repercussions.

The legal criteria to qualify for this form of relief are as follows:

You are the victim or indirect victim of qualifying criminal activity.
You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
You have information about the criminal activity. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf.
You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.
The crime occurred in the United States or violated U.S. laws.
You are admissible to the United States. If you are not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

The limit on the number of U visas that may be granted to principal petitioners each year is 10,000. However, there is no cap for family members deriving status from the principal applicant, such as spouses, children, or other eligible family members. The applications must be sent to the Vermont Service Center or the Nebraska Service Center and the average processing times range from 60 to 64 months.

If you are approved for a U-Visa petition, you and your qualifying family members are eligible for Employee Authorization. Additionally, you will be eligible to stay in the United States of America for four years after approval and eligible to adjust to Legal Permanent Resident Status after three years of holding this status.

Victims of Human Trafficking: T Nonimmigrant Status

T nonimmigrant status is a temporary immigration benefit that enables certain victims [and certain qualifying family members] of a severe form of trafficking to remain in the United States for an initial period of up to 4 years if they have complied with any reasonable request for assistance from law enforcement in the detection, investigation, or prosecution of human trafficking or qualify for an exemption or exception. T nonimmigrants are eligible for employment authorization and certain federal and state benefits and services. T nonimmigrants who qualify may also be able to adjust their status and become lawful permanent residents (obtain a Green Card).

Congress created this nonimmigrant status (commonly referred to as a T visa) in October 2000 as part of the Victims of Trafficking and Violence Protection Act. Human trafficking, also known as trafficking in persons, is a form of modern-day slavery in which traffickers use force, fraud, or coercion to compel individuals to provide labor or services, including commercial sex. Traffickers often take advantage of vulnerable individuals, including those lacking lawful immigration status. T visas offer protection to victims and strengthen the ability of law enforcement agencies to detect, investigate and prosecute human trafficking.

Under federal law, a “severe form of trafficking in persons” is:

Sex trafficking: When someone recruits, harbors, transports, provides, solicits, patronizes, or obtains a person for the purpose of a commercial sex act, where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is under 18 years of age; or
Labor trafficking: When someone recruits, harbors, transports, provides, or obtains a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery.

The legal elements that must be shown in order to obtain a T visa are:

Are or were a victim of a severe form of trafficking in persons as defined above
Are physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking;
Have complied with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (unless you were under the age of 18 at the time at least one of the acts of trafficking occurred or you are unable to cooperate due to physical or psychological trauma; if either case applies, you may not need to show that you complied with reasonable requests from law enforcement);
Demonstrate that you would suffer extreme hardship involving unusual and severe harm if you were removed from the United States; and
Are admissible to the United States (If you are not admissible, you may be eligible for a waiver of certain grounds of inadmissibility. You may apply for a waiver using a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant).

The limit on the number of T visas that may be granted to principal petitioners each fiscal year is 5,000. However, there is no cap for family members deriving status from the principal applicant, such as spouses, children, or other eligible family members. The Department of Homeland Security has never reached the limit of 5,000 and has averaged approving nearly 1,500 of such a visa annually. The applications must be sent to the Vermont Service Center and the average processing times range from 16 to 32 months.

You may apply to adjust to Legal Permanent Resident Status in the United States of America after holding a T visa for at least 3 years or at the conclusion of the investigation into the trafficking perpetrated against you, whichever is shorter. You must show that you were lawfully admitted to the United States as a T-Visa holder, have met the continuous stay requirements outlined in the preceding sentence, display good moral character, and you either complied with any request for assistance in the investigation or would suffer extreme hardship involving unusual and severe harm if you were removed from the United States or you were under 18 at the time the trafficking occurred.

Violence Against Women Act: Self-Petition

Generally, family-based immigration requires U.S. Citizens or Lawful Permanent Residents (LPRs) to file a petition for their noncitizen family members. However, some petitioners may abuse this process to further harm their noncitizen family members by threatening to withhold or withdraw the petition in order to control, coerce, and intimidate them.

In 1994, the United States enacted the Violence Against Women Act of 1994 (VAWA) to protect such victims against abuse by their U.S. Citizens or Lawful Permanent Resident family members and granted them the ability to self petition for immigration classification without the abuser’s knowledge, consent, or participation in the immigration process. This provided victims with a safe and independent route to seek legal status.

The legal elements required are:

You have a qualifying relationship as the:
- Spouse, intended spouse, or former spouse of an abusive U.S. Citizen or Legal Permanent Resident, or
  - If you are self-petitioning as the Spouse of an abusive U.S. Citizen or Legal Permanent Resident, then you also must demonstrate that you entered into the marriage in good faith and not for the purpose of evading immigration laws.
- Child of an abuse U.S. Citizens or Legal Permanent Resident, or
- Parent of an abusive U.S. Citizen son or daughter who is 21 years old or older
You were subjected to battery or extreme cruelty by your U.S. Citizen or Lawful Permanent Resident Relative during the qualifying relationship, and
- If you are applying as a spouse, you may also be eligible if your U.S. Citizen or Lawful permanent resident spouse subjected your child to battery or extreme cruelty
You are residing or have resided with your abusive U.S. Citizen or Lawful Permanent Resident Relative, and
You are a person of good moral character
This element only applies to individual who are self-petitioning while outside of the United States of America, you must additionally show one of the three elements below:
- Your abusive U.S. Citizen or Lawful Permanent Resident relative is an employee of the U.S. Government, or
- Your abusive U.S. Citizen or Lawful Permanent Resident relative is a member of the U.S. armed forces, or
- You were subjected to batter or extreme cruelty in the United States

Spouses and children of U.S. Citizens and LPRs, and parents of U.S. Citizens who are 21 years of age or older, are eligible to self petition for this immigrant classification with USCIS. A petitioner is known as a VAWA Self-Petitioner. Generally, if you are in the United States of America and you are approved for VAWA, a petitioner is automatically eligible to apply for Adjusting their Status to a Legal Permanent Resident. If you are outside of the United States, you must go through consular processing and apply for a visa to enter the United States at an Embassy.

There is no numerical cap on how many VAWA self-petitions the U.S. Government may approve. The petition must be sent to the Vermont Service Center and usually takes 24 to 31 months to process.

As is evident, under contemporary U.S. Immigration Law, there are several routes for individuals who have been persecuted, trafficked, abused by a U.S. Citizen or Green-Card holder, or are victims of enumerated crimes to qualify for a Visa to remain in the United States.

At Elsouri Law & Consultants, we provide our clients with quality representation and ensure you stand the best chance to successfully claim these forms of relief. We will ensure that your application is assembled properly, maintain a system of communication with you, and appraise you of what documentation we will need.

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