Removal Defense

If you are in the United States and afraid to return to your home country because you fear persecution there, you may apply for asylum in the United States. An application for asylum can be filed only when a foreign national is already in the United States or at the border with the United States.

In order to apply for asylum, a person needs to prove that he or she have been persecuted in the past or will likely be persecuted in the future on the basis of race, religion, nationality, political opinion, or membership in a particular social group. The asylum applications can be affirmative or defensive. If you are in removal proceedings, you will have a defensive asylum application, and if you are not in removal proceedings, you will have an affirmative asylum application. The process differs depending on what kind of asylum application you have.

It is important to comply with the filing deadline, requirements, and instructions, and to work with an immigration attorney from the start of the process.

A principal asylee admitted to the U.S. within the past two years (2 years from the grant of asylum) may file form I-730 Refugee/Asylee Relative Petition for their unmarried children under 21 years of age and spouse. In some cases, the USCIS may grant a waiver of the two-year filing deadline for the I-730 petition and in certain circumstances unmarried children over 21 years of age may be eligible to become beneficiaries of the approved I-730 petition. If children and/or spouse of the principal asylee are outside of the United States, they will need to go through a consular interview outside the U.S. following the approval of the I-730 petition.

Temporary Protected Status (TPS) gives a foreign national located in the U.S. temporary protection of deportation from the U.S. The DHS may designate a particular country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning there safely. Please note that certain individuals without nationality who last resided in the designated for TPS country may also be granted TPS.

The following temporary conditions in the country may make the DHS designate that country for TPS:

• Civil war/Ongoing armed conflict
• An environmental disaster, for example, an earthquake or hurricane, or an epidemic
• Other extraordinary and temporary conditions

TPS does not lead to permanent residency and/or citizenship by itself, but it protects from removal from the U.S. It also allows those who apply for TPS to request a work authorization in the U.S. and a travel document (advance parole) that may be used for international travel.

If you have a pending asylum case with the USCIS or EOIR or planning to file an asylum application, your application for TPS would not affect your asylum application, and vice versa.

Currently, the DHS has designated several countries for TPS. To apply for TPS, a foreign national would need to meet the requirements that apply to the nationals of a certain country. Remember that each TPS program has its own requirements. However, the form that a foreign national needs to file to apply for TPS is the same for all applicants, and it is called Form I-821, Application for Temporary Protected Status. This is an individual application, meaning that each applicant has to file their own form.

If in addition to TPS, you’d like to apply for an employment authorization, then you’d need to file form I-765, Application for Employment Authorization. To request a travel document (advance parole), you will need to file form I-131, Application for Travel Document. Please note that the TPS travel document is not a visa, and we recommend consulting with an immigration attorney before your upcoming travel.

Humanitarian Parole is a discretionary authorization issued to a foreign national outside the U.S. to travel to the U.S. based on urgent humanitarian or significant public benefit reasons. Parole is not a visa and it can be used only once to enter the U.S.

It is normally granted for the period of time necessary to accomplish the purpose of the parole. For, example, for the period of time needed for urgent treatment in the U.S., or for the period of time required for a witness to testify in a trial in the U.S., etc. Parole may be requested by a foreign national or a U.S.-based supporter can request it for the foreign national.

In deciding whether there is urgent humanitarian reason to travel to the U.S., the USCIS will take into account whether or not the circumstances are pressing; the effect of the circumstances on the individual’s welfare and well-being; and the degree of suffering that may result if parole is not authorized.

The regulations do not define “significant public benefit.” Per the USCIS, “[p]arole based on significant public benefit includes, but is not limited to, law enforcement and national security reasons or foreign or domestic policy considerations. USCIS officers look at all of the circumstances presented in the case.”

In addition to establishing that you need to travel based on urgent humanitarian or significant public benefit reasons, you will need to prove to the USCIS that you will enough funds to support yourself while in the United States. You will need to have an individual who would agree to financially support you in the United States and file form I-134, Declaration of Financial Support. This form is different from form I-864, Affidavit of Support It is important to meet the requirements for financial possessorship, and we recommend that you consult with an immigration attorney before applying.