No matter where I meet my clients, my goal, as is the case for most immigration attorneys who work from and lead with the heart, is citizenship. The United States is a great country that abounds with opportunities, and as immigration attorneys, we meet all kinds of people coming here or already here who need to get their paperwork in order. Again, no matter what the client’s status is—refugee, asylee, temporary protected status (TPS), parolee, Dreamer (qualifying for Deferred Action for Childhood Arrivals, or DACA), or a nonimmigrant status—the goal is always citizenship. Most of us work to give our clients a chance to have legal permanent status. But not all statuses are alike. Not all statuses carry the same weight or value. Not all statuses afford our clients the same protections. Not all statuses make them eligible for permanent residence. And as much as people often think of attorneys as magicians (and sometimes we are), not all cases can be won, even though most of us try and give all our efforts for the best fighting chance.
This great country offers protection to persons who are in imminent danger of the violation of their human rights or have already suffered from the consequences of human rights violations. Persons in this category are among the few who can apply for immigrant status without a family member or an employer sponsoring them. Asylum seekers are usually already in the United States and applying for relief here. Refugees are outside the United States and applying for relief. Both asylees and refugees are eligible to adjust their status to lawful permanent resident.
Applicants for refugee status must have a well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group, or political opinion. This is the same standard as the application for asylum. Applicants for refugee status are interviewed by an immigration officer, who determines whether they are eligible to be admitted as refugees, and after this prescreening, the application will be submitted to the U.S. Citizenship and Immigration Services (USCIS).
Unlike those in most other statuses, which require a work permit, refugees are a protected class and do not have to file an I-765, Employment Authorization application. Asylees can apply for work authorization 180 days after their application for asylum is filed. Also, after only one year, a refugee can apply for lawful permanent residence. If conditions improve in their home country, asylees may have their status terminated; refugees are not subject to this condition.
Asylees can apply based on the Convention Against Torture or show they have been persecuted or have a well-founded fear of persecution in their home country. As with those applying for refugee status, applicants for asylee status must show persecution based on one of these five grounds: race, religion, nationality, membership in a particular social group, or political opinion.
As the term denotes, this status is temporary. The United States gives temporary protection status to citizens of other countries experiencing natural disasters or civil unrest. TPS holders are protected from deportation and can be granted a work permit, but unlike asylees and refugees, they are not provided a pathway to permanent residence. TPS holders can travel abroad. Currently, 16 countries are on the TPS list, including a few African countries, a few South American countries, and Haiti. TPS is usually granted for up to 18 months and can be extended for a brief period of time. However, if the U.S. Secretary of Homeland Security deems that conditions in the applicant’s country have normalized, then the applicant may be placed in removal. A person with TPS holds a lawful nonimmigrant status in the United States. There is a status similar to TPS called deferred enforced departure, but persons with this status cannot travel aboard.
A person may be paroled into the United States for a significant public benefit (such as participating in a trial as a witness) or for “urgent humanitarian reasons.” Like the refugee, a person who is outside the United States may apply to be paroled into the United States, and as with the asylum seeker, U.S. Immigration and Customs Enforcement (ICE) may grant parole to persons inside the United States who have been detained. Unlike refugees, asylees, or TPS holders, parolees are not entitled to work authorization, although this is at the discretion of USCIS on a case-by-case basis. Like TPS, parole status does not provide a pathway to permanent residence.
Although permanently enjoined for new cases in 2021, DACA gave many persons who came here as children and had no lawful status in the United States deferred action by preventing their removal. Deferred action was granted as a form of prosecutorial discretion, and although DACA recipients could apply for a work permit, DACA did not grant legal status. Once applicants showed they had been brought to the country before their 16th birthday, had been continuously residing here as of June 15, 2007, and were in school or had their GED, such persons were prima facie eligible.
The nonimmigrant status covers basically everyone who is in the United States or coming to the United States, some with the intent and some without the intent to be a permanent resident or citizen. There are many different types of nonimmigrant statuses and different types of visas, corresponding to the letters below:
A. Diplomatic visas
B. Tourist and visitor visas
C. Visas for aliens in transit
D. Visas for crew members who work on ships
E. Investor visas (EB-5 is a pathway to permanent residence, but EB-2 is not)
F. Student visas
G. Visas for persons who work with international organizations
H. Temporary work visas such as H-1B and H-2B (H-1B is a pathway to permanent residence, but H-2B is not)
I. Visas for media representatives
J. Visas for exchange visitors, such as the J-1 visa
K. Fiancé visas
L. Intra-company visas
M. Visas for students who are not in an academic institution
N. Visas for parents and children of special immigration
O. Visas for artists and persons of exceptional talent
P. Visas for athletes and entertainers
Q. Visas for cultural exchanges
R. Visas for religious workers
S. Visas for witnesses and informants
T. Visas for victims of human trafficking
TN. Visas under the North American Free Trade Agreement (NAFTA) for professionals from Mexico and Canada
U. Visas for persons who have suffered physical or mental abuse
Many of the people with nonimmigrant status in the United States find pathways to permanent residence. Many people, although coming with the intent to visit, study, or stay for a short period of time, end up adjusting their status. Some will have family members petition for them, and some will find a spouse or an employer to petition for them.
When you look at the refugee, asylee, TPS, parolee, DACA, and nonimmigrant statuses, you will find that none of these statuses are alike. None are equal. What they all have in common is that they are based on discretion. Also, in all the cases, the applicant has the burden of proof. While some statuses, such as refugee and asylee, provide pathways to permanent residence, the others do not. While some nonimmigrant statuses provide a pathway to citizenship, such as the H-1B and the E-B5 visas, most nonimmigrant statuses, such as the E-B2 and the TN visas, do not. Our goal as immigration attorneys is to meet clients wherever they are and, if it is the clients’ desire, to help them achieve citizenship in this great country.
