By Attorneys Anda C. Kwong & Nancy E. Miller
Once asylum has been granted, the non-citizen has lawful status to live and work in the United States—even without an employment authorization document (EAD). Some asylees apply for EADs to obtain an additional government issued identity document and they are eligible to do so. While asylee status does not expire, it may be revoked. A change in country conditions or a return to the country of persecution may result in the loss of asylum. So can obtaining lawful status in a third country. And conviction of various crimes may render the asylee ineligible to maintain that status.
The asylee may apply for her spouse and children to join as derivatives within two years of the grant of asylum. Proof of the familial relationship is required for spouse and children. However, applications for children have additional requirements. The children must have been under twenty-one years old and unmarried as of the date of filing the asylum application. Additional requirements apply depending on whether the child is biological, step, adopted or even unborn at the time of the initial filing. USCIS may require a DNA test of a purported biological parents and child when the officer suspects that the relationship does not exist. Step-children qualify as derivative children as long as the relationship among child, biological parent, and principal asylee can be demonstrated.
An adoptee is considered to be a child where the legal adoption took place prior to the child’s 16th birthday, and the custody and joint residency requirements have been met. Finally, an unborn child will need to be explained and documented as the child was most likely not included on the initial asylum application.
Like the principal asylee, derivatives are eligible to apply to adjust status to lawful permanent residence after one year of asylum status. As green card holders, they can petition family members who did not qualify as derivative asylees. In certain circumstances, family members not eligible as derivatives may be paroled into the United States for humanitarian reasons, even before the asylee becomes a permanent resident. Most commonly are minor grandchildren or parents with disabilities who are unable to care for themselves.
There are times when a derivative may be made a principal asylee nunc pro tunc, such as divorce from or death of the original principal asylee. In other words, the derivative spouse may retroactively become a principal asylee backdated to the date that her spouse was granted status. There are other benefits of changing a derivative into a principal, such as being able to bring the principal asylee’s grandchild who did not otherwise qualify as a derivative.
While an asylee has the right to be lawfully present and work in the US, she needs to apply for a refugee travel document if she plans to travel internationally. Without this travel document, the asylee will be considered inadmissible when attempting to reenter the US. The refugee travel document is valid for up to one year. Once expired, an aslyee who has traveled outside of the country is inadmissible and may not resume her status unless she is granted a new refugee travel document. While the asylee may apply for a new refugee travel document at a US consulate or port of entry, there is no guarantee that it will be granted. Thus, it is wiser to return to the US before the document expires.
Traveling on the passport of the home country is considered availing oneself of the protection of the country of persecution and can result in the revocation of asylum (or the green card). Likewise, returning to her country of origin after obtaining asylum status may be considered “voluntarily re-availing oneself of the protection of the country of nationality.” What that means is that an asylee could lose her asylum status because it appears that she no longer has a well-founded fear of persecution in her home country as a result of her race, religion, nationality, membership in a particular social group or political opinion. Of course, there are instances where an individual must go to her home country despite her well-founded fear. Should the government seek to revoke the asylum grant, the asylee (or green card holder) may contest that attempt in Immigration Court.
Asylee status is precious. It accords one safety from persecution. It allows the family of the principal asylee to live and work with them here in the U.S. And asylee status can also lead to green cards and U.S. citizenship. But it can also be lost. Asylees should consult a knowledgeable and experienced immigration lawyer when contemplating travel or when experiencing other life-changes.