Refugee or Asylee Status

Under U.S. law, a refugee is a person who has fled his or her country of origin because of past persecution or a well-founded fear of persecution based upon race, religion, nationality, political opinion, or a membership in a particular social group. This definition of a refugee does not include those people who have left their homes only to seek a more prosperous life. Such people are commonly referred to as "economic migrants," and are not refugees.

A person may become a refugee by being referred by UNHCR for resettlement in the U.S., or if the person appears to be a member of a specific group determined by the U.S. Government to be in need of protection. A person who is seeking to be recognized as a refugee is an asylum seeker. In the U.S. a recognized asylum seeker is known as an asylee. The U.S. honors the right of asylum of individuals, as specified by international and federal law. The U.S. is obliged to recognize valid claims for asylum under the 1951 Convention Relating to the Status of Refugees, its 1967 Protocol and the U.S. Refugee Act of 1980.

As defined by theses agreements, a refugee is a person who is outside his or her country of nationality (or habitual residence if stateless) who, owing to a fear of persecution on account of a protected ground, is unable or unwilling to avail himself of the protection of the state. Protected grounds include race, nationality, religion, political opinion and membership of a particular social group.

The U.S. Attorney General has the discretion to grant asylum to those who demonstrate a well-founded fear of persecution on account of one of the protected grounds. The federal handling of asylum claims and refugee affairs is led by the Bureau of Population, Refugees and Migration of the US Department of State working with the Citizenship and Immigration Services of the Department of Homeland Security.

Asylum status and refugee status are closely related. They differ only in the place where a person asks for the status:

• Asylum Status: asked for in the United States
• Refugee Status: asked for outside of the United States.

All people who are granted asylum must meet the definition of a refugee, as stated (above) in the 1951 Geneva Convention. An alien who has been granted political asylum is the equivalent in terms of rights and responsibilities to an alien who entered as a refugee.

Asylees/Refugees apply for asylum status overseas or after arriving in the U.S.:

• Overseas Applicant -- Petitions are made to US embassies in foreign countries and are review by employees of the State Department. In these cases refugee status has normally already been reviewed by the UN High Commissioner for Refugees and granted by the host country.
• US Applicant -- Petitions made by persons already in the US in another visa status are made in two ways. If the person has been placed in removal proceedings the decision can be made by an Immigration Judge. If the person has not been placed in removal proceedings they can apply for asylum with US CIS regardless of their legal status in the US. An applicant must apply for asylum within one year of entering the US.

An asylee or refugee may apply for permanent resident status in the US one year after being granted asylum or refugee status.

• A refugee is required by law to apply for permanent resident status one year after being granted/entering the US in refugee status.
• An asylee is not required to apply for permanent resident status after granted asylum for one year.

Employment Requirements and Restrictions:

• Pending: Alien who has petitioned for asylee/refugee status.
  • Eligible for a work permit (EAD) only if their application for asylum has been pending for more than 180 days without decision by US CIS or with an immigration judge. Remains authorized to work until the case is adjudicated. (This stage may take years.)
  • Must have an EAD to work
  • EAD needs to be renewed annually (check eligibility code on EAD)
  • Not work authorized incident to status
• Granted: Alien who has been granted asylee/refugee status by US CIS
  • Asylee is not exempt from the Substantial Presence Test
    • Refugee status granted outside the US -- start counting with day of arrival in US
      1. Arrive before 7/2 -- count from first day of employment
      2. Arrive after 7/2 -- NRA for all of current calendar year and RA starting on new calendar year
    • Asylees status granted inside the US -- start counting with day of change to asylee status.
    • Proof alien has been granted asylum may be a form from US CIS or from an immigration judge
    • Work authorization is incident to status (proven by grant of asylum)
    • I-94 may or may not reflect asylee status (Refugee Stamp on a I-94 to which a photo is attached is treated as a receipt and valid until expiration or one year from the issuance date if there is no expiration date.)
    • For I-9 documents use List A & C:
      1. CIS policy wants asylees to get List A or C documents for work authorization
      2. List A -- EAD, unrestricted SSN card
      3. List C #7 -- proof of asylee status (CIS letter)
      4. List B -- expired EAD
    • No identification is required for reverification purposes
    • Not exempt from the SPT if in the US
    • Does not need an EAD in order to work (technically aren't required to have an EAD if they have other proof of identity and employment eligibility)
    • Eligible for an unrestricted SS card (individual can apply for one as soon as asylum is approved)

Proof of asylee/refugee status or an unrestricted SSA card is enough evidence of unrestricted employment authorization to pay an honorarium (and related expenses) in spite of the honorarium rules.

Immigration Process once individual has been granted asylee/refugee status:

• Alien waits one year
• Alien then petitions US CIS for change to immigrant status. Alien waits more time (maybe years)
• Alien granted legal permanent residence status (green card)
  • No EAD required if alien has a green card
  • Subject to all US tax obligations