If you’ve fled your home country and are afraid to go back, you might qualify for asylum or refugee status in the U.S.
Asylum and refugee status are special legal protections available to people who have left their home country for their own safety and are afraid to return to any place within that country. (See 8 U.S.C. § 1158.)
If you can relocate and live safely within your home country, you will not be able to demonstrate that you have a well-founded fear of persecution and will not be granted asylum in the United States.
What’s the difference between asylum and refugee status under U.S. immigration law? That is, who should seek asylum status, and who should seek refugee status? It’s simply a matter of where you are when you apply.
People outside of the U.S. must apply for refugee status, typically through the U.N. High Commission for Refugees. (They cannot specify that they’d like to go the U.S. or any particular country, however.)
People who have already made it to the U.S. border or the interior (perhaps by using a visa or by entering illegally) can apply for asylum status.
Once a person is granted, both refugee and asylee statuses allow staying in the United States indefinitely. Asylees and refugees are given permission to work and are allowed to apply for a green card within one year of either entering the United States as a refugee or being approved for asylum.
But not everyone qualifies for asylum or refugee status. You must meet some strict requirements, as described in this article. In particular, you must show two things:
You are unable or unwilling to return to your home country because you have been persecuted there in the past or have a well-founded fear that you will be persecuted if you go back.
The reason you have been (or will be) persecuted is connected to one of five things: your race, religion, nationality, membership in a particular social group, or your political opinion.
Let’s look more closely at what these requirements mean.
To persecute means to harass, punish, injure, oppress, or otherwise cause someone to suffer physical or psychological harm. U.S. immigration law does not list specific examples of the kinds of persecution that would qualify someone for asylum or refugee status. However, from the law that has been developed through court cases, we know that it can include such acts as threats, violence, torture, inappropriate imprisonment, or denial of basic human rights or freedoms. Historically, for example, the need for asylum or refugee status has been recognized in situations where a foreign government has:
Imprisoned and tortured political dissidents or supposed undesirables,
Fired weapons on protesters,
Committed genocide against a certain race,
Made sure that members of a certain religion were left out of the political process, and much more.
Even if a foreign government stands by while someone else commits acts of persecution (for example, if the authorities are unwilling or unable to exercise control while members of a vigilante squad gang up on gays and lesbians or while members of a guerilla group threaten or kidnap people who won’t voluntarily join them), this too can qualify as persecution, which would support a claim for asylum or refugee status.
There is one type of persecution that is actually listed in the law: Being forced to undergo (or the fear of being forced to undergo) a program of “coercive population control.” (See I.N.A. Section 101(a) (42)(B).) This is aimed at victims of the kind of forced abortion and sterilization that takes place in mainland China.
Again, remember that the persecution must be connected to one of five grounds—race, religion, nationality, membership in a social group, or political opinion—discussed in more detail below. For example, violence directed against gays and lesbians is recognized as persecution connected to membership in a social group. But violence against an individual who happens to have angered a local criminal does not have the necessary connection to one of the five grounds, so the victim wouldn’t be eligible for asylum or refugee status from the U.S. government.
In recent years, the U.S. government recognized persecution based on gender (usually based on the “particular social group” category). This allowed some women to gain asylum based on having undergone (or fearing they’ll be forced to undergo) cultural practices such as female genital cutting, forced marriage, or domestic violence. However, under the Trump Administration, this recognition is being rolled back.
Also remember that your fear of future persecution must be “well-founded.” In other words, you will want to show that you have at least a one in ten chance of experiencing the feared harm. (See INS v. Cardoza Fonseca, 480 U.S. 421, 107 S.Ct. 1207 (1987).)
As mentioned above, the U.S. government grants asylum or refugee status to a person who has suffered or fears persecution that’s based on one of only five grounds. The first three grounds—race, religion, and nationality—are fairly self-explanatory. Let’s look at the remaining two—political opinion and membership in a particular social group.
Political opinion. Persecution of this kind means you hold opinions that the authorities don’t tolerate, most likely critical of the government’s policies or methods. Of course, you would need to show that the authorities know about your opinions—otherwise, they’d have no reason to come after you. It will help if you have, for example, spoken in public, written publicly about your criticisms, or taken part in anti-government protests. People have proven persecution for political opinion based on having taken part in student demonstrations, been active in labor unions, advocated independence for a particular ethnic group, or joined an opposition political party.
You can also qualify for asylum or refugee status based on political opinion if the authorities mistakenly assume that you hold certain opinions, perhaps based on some other personal characteristic like your religion or family group. (This is called “imputed political opinion.”)
Membership in a particular social group. This category is the most difficult of the five to define and is the subject of many legal arguments. A social group is described as a group sharing a common characteristic that is so fundamental to their individual identities that the members cannot—or should not be expected to—change it, the group has distinct boundaries for membership, and the group is recognized within society as a distinct entity.
Examples of particular social groups whose members have been accepted as asylees or refugees by the U.S. government include tribes or ethnic groups, social classes (such as educated elite), family members of dissidents, occupational groups, homosexuals, and members or former members of the police or military (who may be targeted for assassination).
If you are applying for asylum based on your membership in a particular social group, be aware that the laws governing membership in a particular social group are subject to change. Under the Trump administration, many groups that were previously considered particular social groups no longer qualify.
Even if you think you’re eligible for asylum or refugee protection in the United States—that is, you’ve experienced persecution based on one of the five grounds—you still need to not only prepare an application but supplement it with evidence proving your claim. You can use your own testimony, statements by witnesses, newspaper and other reports discussing your case or the human rights situation in your country, expert witness statements, and more.
Determining eligibility and applying for asylum or refugee status isn’t easy. Start your process by taking an appointment with us.
If you’ve fled your home country and are afraid to go back, you might qualify for asylum or refugee status in the U.S.
Refugee and asylum status are special legal protections available to people who have left their home country for their own safety and are afraid to return to any place within that country. (See 8 U.S.C. § 1158.)
If you can relocate and live safely within your home country, you will not be able to demonstrate that you have a well-founded fear of persecution and will not be granted asylum in the United States.
What’s the difference between asylum and refugee status under U.S. immigration law? That is, who should seek asylum status, and who should seek refugee status? It’s simply a matter of where you are when you apply.
People outside of the U.S. must apply for refugee status, typically through the U.N. High Commission for Refugees. (They cannot specify that they’d like to go the U.S. or any particular country, however.)
People who have already made it to the U.S. border or the interior (perhaps by using a visa or by entering illegally) can, in theory, apply for asylum status. This has become much more difficult under the Trump Administration, however, initially owing to new (and ever-changing) policies such as “Wait in Mexico.” Then later, following the start of the coronavirus (COVID-19) pandemic, the Trump Administration extended a Centers for Disease Control (CDC) Order giving permission to border agents to expel anyone who arrived without an entry visa or permission, without conducting interviews to see whether they have a credible fear of persecution. Litigation on these matters is ongoing.
Once a person is granted, both refugee and asylee statuses allow staying in the United States indefinitely. Asylees and refugees are given permission to work and are allowed to apply for a green card within one year of either entering the United States as a refugee or being approved for asylum.
But not everyone qualifies for asylum or refugee status. You must meet some strict requirements, as described in this article. In particular, you must show two things:
You are unable or unwilling to return to your home country because you have been persecuted there in the past or have a well-founded fear that you will be persecuted if you go back.
The reason you have been (or will be) persecuted is connected to one of five things: your race, religion, nationality, membership in a particular social group, or your political opinion.
Let’s look more closely at what these requirements mean.
To persecute means to harass, punish, injure, oppress, or otherwise cause someone to suffer physical or psychological harm. U.S. immigration law does not list specific examples of the kinds of persecution that would qualify someone for asylum or refugee status. However, from the law that has been developed through court cases, we know that it can include such acts as threats, violence, torture, inappropriate imprisonment, or denial of basic human rights or freedoms. Historically, for example, the need for asylum or refugee status has been recognized in situations where a foreign government has:
Imprisoned and tortured political dissidents or supposed undesirables,
Fired weapons on protesters,
Committed genocide against a certain race,
Made sure that members of a certain religion were left out of the political process, and much more.
Even if a foreign government stands by while someone else commits acts of persecution (for example, if the authorities are unwilling or unable to exercise control while members of a vigilante squad gang up on gays and lesbians or while members of a guerilla group threaten or kidnap people who won’t voluntarily join them), this too can qualify as persecution, which would support a claim for asylum or refugee status.
There is one type of persecution that is actually listed in the law: Being forced to undergo (or the fear of being forced to undergo) a program of “coercive population control.” (See I.N.A. Section 101(a) (42)(B).) This is aimed at victims of the kind of forced abortion and sterilization that takes place in mainland China.
Again, remember that the persecution must be connected to one of five grounds—race, religion, nationality, membership in a social group, or political opinion—discussed in more detail below. For example, violence directed against gays and lesbians is recognized as persecution connected to membership in a social group. But violence against an individual who happens to have angered a local criminal does not have the necessary connection to one of the five grounds, so the victim wouldn’t be eligible for asylum or refugee status from the U.S. government.
In recent years, the U.S. government recognized persecution based on gender (usually based on the “particular social group” category). This allowed some women to gain asylum based on having undergone (or fearing they’ll be forced to undergo) cultural practices such as female genital cutting, forced marriage, or domestic violence. However, under the Trump Administration, this recognition is being rolled back.
Also remember that your fear of future persecution must be “well-founded.” In other words, you will want to show that you have at least a one in ten chance of experiencing the feared harm. (See INS v. Cardoza Fonseca, 480 U.S. 421, 107 S.Ct. 1207 (1987).)
As mentioned above, the U.S. government grants asylum or refugee status to a person who has suffered or fears persecution that’s based on one of only five grounds. The first three grounds—race, religion, and nationality—are fairly self-explanatory. Let’s look at the remaining two—political opinion and membership in a particular social group.
Political opinion. Persecution of this kind means you hold opinions that the authorities don’t tolerate, most likely critical of the government’s policies or methods. Of course, you would need to show that the authorities know about your opinions—otherwise, they’d have no reason to come after you. It will help if you have, for example, spoken in public, written publicly about your criticisms, or taken part in anti-government protests. People have proven persecution for political opinion based on having taken part in student demonstrations, been active in labor unions, advocated independence for a particular ethnic group, or joined an opposition political party.
You can also qualify for asylum or refugee status based on political opinion if the authorities mistakenly assume that you hold certain opinions, perhaps based on some other personal characteristic like your religion or family group. (This is called “imputed political opinion.”)
Membership in a particular social group. This category is the most difficult of the five to define and is the subject of many legal arguments. A social group is described as a group sharing a common characteristic that is so fundamental to their individual identities that the members cannot—or should not be expected to—change it, the group has distinct boundaries for membership, and the group is recognized within society as a distinct entity.
Examples of particular social groups whose members have been accepted as asylees or refugees by the U.S. government include tribes or ethnic groups, social classes (such as educated elite), family members of dissidents, occupational groups, homosexuals, and members or former members of the police or military (who may be targeted for assassination).
If you are applying for asylum based on your membership in a particular social group, be aware that the laws governing membership in a particular social group are subject to change. Under the Trump administration, many groups that were previously considered particular social groups no longer qualify.
Even if you think you’re eligible for asylum or refugee protection in the United States—that is, you’ve experienced persecution based on one of the five grounds—you still need to not only prepare an application but supplement it with evidence proving your claim. You can use your own testimony, statements by witnesses, newspaper and other reports discussing your case or the human rights situation in your country, expert witness statements, and more.
Determining eligibility and applying for asylum or refugee status isn’t easy. Start your process by taking an appointment with us.
One has to file Form I-485, Application to Register Permanent Residence or Adjust Status to apply for a Green Card without leaving the country. One must have an approved Form I-360 in order to qualify for a Green Card. If a visa is immediately available to them, they do not have to wait until your Form I-360 is approved to file Form I-485.
A VAWA self-petitioner seeking to adjust status as an immediate relative, may file Form I-485 at any time because visas are always immediately available for immediate relatives. A VAWA self-petitioner seeking to adjust under a family-based preference category may need to wait for a visa to become available.
If a visa is immediately available, you may file your Form I-485:
Together (“concurrently”) with your Form I-360;
While your Form I-360 is pending; or
After your Form I-360 is approved (and remains valid).
If there is already a pending Form I-485 based on an approved Form I-130, Petition for Alien Relative that the abusive family member filed, one may request to convert Form I-485 so that it is based on VAWA self-petition. To make this request, one must notify the USCIS field office adjudicating the pending Form I-485 that has been filed a VAWA self-petition or that one will do so within 30 days. One should also provide the USCIS field office with a safe address where they can mail all future correspondence to you.
If one does not submit evidence that you filed a VAWA self-petition within 30 days of requesting to convert your Form I-485, USCIS may make a decision on your pending application based on the original Form I-130 filed by the abusive family member. Otherwise, if USCIS approves your VAWA self-petition, your application to adjust status will be based on the VAWA self-petition instead of the original Form I-130.
While beginning the process of filing for U.S. residence under the Violence Against Women Act (VAWA), one must not only fill out and submit a self-petition on Form I-360 to U.S. Citizenship and Immigration Services (USCIS), but also submit evidence showing that s/he meets the VAWA eligibility requirements and qualifies for relief.
A self-petitioning spouse must satisfy seven requirements to establish eligibility for a VAWA self-petition.
Generally, self-petitioning spouses can demonstrate the existence of a marital relationship with a valid marriage certificate. A self-petitioning child must prove that s/he is the natural child, stepchild, or adopted child of a citizen or lawful permanent resident. A self-petitioning parent must prove a parental relationship to their U.S. citizen son or daughter.
If the self-petitioner is currently not married to the abuser by reason of the abuser’s bigamy, death, or divorce, the self-petitioner may still qualify if she can prove that:
She believed that she has legally married the abuser, but the marriage was invalid due to her abuser’s bigamy.
She was the spouse of a U.S. citizen who died within the past two years
She was divorced from the abuser within the past two years
A self-petitioner must prove that his or her spouse or parent is a U.S. citizen or lawful permanent resident.
Generally, self-petitioners must currently reside in the United States at the time of application.
Some self-petitioners may file from abroad if they meet one of three requirements:
• The abusive spouse or parent is an employee of the U.S. government;
• The abusive spouse or parent is a member of the uniformed services; or
• The abusive spouse or parent has subjected the immigrant spouse to battery or extreme cruelty while physically present in the United States.
A self-petitioner does not have to reside with the abuser at the time of filing, but must still prove that she at one time resided with the abuser. Self-petitioners DO NOT have to separate from the abuser in order to file a self-petition.
The Department of Homeland Security will consider any credible evidence, including civil protection orders, police and court records, medical reports, and affidavits of school officials, social workers, and shelter workers.
Examples of “battery” or “extreme cruelty” include:
According to VAWA regulations, sexual assault is a form of battery and extreme cruelty.
“Good moral character,” as described below, is a term of art in immigration law. To show good moral character, a self-petitioner should submit a local police clearance or state-issued criminal background check from each locality or state, within or outside the United States, in which she has lived for six or more months during the three years immediately preceding the filing of the self-petition.
Self-petitioners, whose petition is based on a marriage relationship, need to demonstrate that they married or intended to marry (in cases of bigamy) in “good faith,” and not for the purpose of evading immigration laws. Note that self-petitioning elder parents do not need to satisfy this requirement to be eligible to receive a VAWA self-petition. Step-children will have to satisfy this requirement.