U.S. Immigration policy is very complex and cannot be summarized easily. This page provides a brief description of immigration policy and the asylum seeking process as it relates to the Human Rights on the Southern Border campaign.
U.S. Immigration Policy: Why Don’t They Just Get In Line?
Fact sheet from the American Immigration Council, October 2021
Many people wonder why all immigrants do not just come to the United States legally or simply apply for citizenship while living here without authorization. These suggestions miss the point: There is no line available for current undocumented immigrants and the “regular channels” are largely not available to prospective immigrants who end up entering the country through unauthorized channels. Even though more than 80 percent of undocumented immigrants have lived in the United States for over 10 years, many could live out the rest of their lives without any opportunity to become legal residents of this country.
No “line” is available for the vast majority of undocumented immigrants.
Immigration to the United States on a temporary or permanent basis is generally limited to three different routes: employment, family reunification, or humanitarian protection. Each of these legal avenues is highly regulated and subject to numerical limitations and eligibility requirements. As a result, most undocumented immigrants do not have the necessary family or employment relationships and often cannot access humanitarian protection, such as refugee or asylum status. This means that no matter how long they have been in the United States, most undocumented immigrants have no way of achieving legal status. Even those who pay taxes, work hard, and contribute to their communities have no way to “get in line” unless Congress creates a new pathway to legal status.
Family-based immigration is limited to certain close family relationships and is numerically restricted.
Most people who legally immigrate to the United States come through family-based visas. Qualified family members in the United States can seek permission to bring in certain eligible foreign-born family members. U.S. citizens can petition for their spouses, parents (if the petitioner is 21 or older), children, and siblings… There are always visas available for the spouses, parents, and minor children of U.S. citizens, but for all other family categories there are annual limits. In all cases, the petitioning family member in the United States must demonstrate an income level above the poverty line and must commit to support the family members they are seeking to bring to the United States. The foreign-born persons wishing to immigrate must meet eligibility requirements as well. This means that a family-based visa is unavailable to any undocumented immigrant who doesn’t have a qualified relative or who fails to meet those eligibility requirements.
Employment-based immigration requires a U.S. employer to request specific foreign workers.
To come to the United States for employment purposes, foreign workers must generally have a job already lined up with an eligible employer who will commit to being a sponsor. An employer can request permission to bring in specific qualified foreign workers, but only if they meet the requirements (such as job skills and education level) and if the employer cannot find qualified U.S. workers to take the job first. Most of the qualifying professions for permanent immigration require high levels of education and professional experience. There are a limited number of temporary visas for highly skilled or internationally recognized workers, and temporary, seasonal visas for agricultural workers and certain other “less-skilled” workers. In most of these cases, an employer must petition for the worker. Very few undocumented immigrants are eligible for employment-based visas, and competition for these visas is fierce. This means that for all but a lucky few, these visas are unavailable to undocumented immigrants regardless of skill or desire to work legally.
Even those who can get in line are subject to long backlogs and waits.
When undocumented immigrants do have qualifying relatives or employers who could provide a pathway to a visa, many are still not able to take advantage of that process for years. The demand from both family members and workers who want to immigrate to the United States is typically higher than the number of slots available each year… The number of permanent immigrants from a single country cannot exceed seven percent of the total number of people immigrating to the United States in a single year. Only immediate relatives of U.S. citizens are not subject to a numerical limit. This results in significant backlogs for most family members and many workers hoping to enter the United States legally, with some immigrants from certain countries waiting decades.
Undocumented immigrants who want to become citizens of the United States cannot just “get in line.” Although there are some lines, many aspiring lawful permanent residents are not eligible to be in any of them. Even if an undocumented immigrant does meet the formal requirements to immigrate, the wait can be very long if the individual is applying from a country with a lengthy backlog of applications.
U.S. Asylum Policy: What Exactly Is The Process?
Note: The U.S. Asylum System changed significantly during the COVID-19 pandemic. The laws governing that time period expired only on December 21, 2022. The Biden Administrations new policies are just now being tested in practice.
Who is an Asylee/Asylum Seeker?
A person, who sought and obtained protection from persecution from inside the United States or at the border. An asylee is an individual who meets the international definition of refugee – a person with well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, who has been forced to flee his or her country because of persecution, war or violence. In the U.S., asylum seekers apply for protection from inside the country or at a port of entry. In contrast, a refugee is a person who applies for protection from outside of the U.S.
How Can Someone Apply for Asylum in the US?
Either affirmatively or defensively. Depending on whether the applicant is or isn’t in removal proceedings, he or she may apply for asylum either through the affirmative asylum process or the defensive asylum process. Under both processes, asylum seekers must indicate a “well-founded fear” of persecution in their home countries during a credible fear interview with immigration authorities. Otherwise, they are ordered for removal.
- Affirmative Asylum Process – Individuals can apply for asylum affirmatively if they are physically present in the U.S., within one year after arrival. They can also apply for asylum at ports of entry. In an affirmative asylum process, an officer decides whether the individual will be granted asylum in the U.S. If the officer denies an asylum application in the affirmative asylum process after the individual’s visa has expired, he or she is referred for removal but can utilize the defensive asylum process to renew his or her request for asylum.
- Defensive asylum process – Individuals can seek asylum as a defense against removal after they are apprehended by U.S. Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) agents in the U.S. or at one of the ports of entry without valid visa. A person in the defensive asylum process requests asylum in immigration court where an immigration judge decides whether or not the applicant will be granted asylum.
Credible Fear Interview: Individuals seeking asylum at ports of entry are placed in expedited removal proceedings by CBP and referred for a credible fear screening interview conducted by an asylum officer. The credible fear interview provides the applicant with the opportunity to explain how he or she has been persecuted or has a well-founded fear of persecution based on his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country. Based on the interview, the officer then decides whether the applicant has a “significant possibility” of being eligible for asylum. If so, the officer refers such individual to immigration court in a defensive asylum application process. If not, the applicant is ordered removed and may seek review by an immigration judge in effort to appeal the negative decision.
How Long Does The Asylum Process Take?
The length of the asylum process varies, but it typically takes between 6 months and several years. The length of asylum process may vary depending on whether the asylum seeker filed affirmatively or defensively and on the particular facts of his or her asylum claim. Under the affirmative asylum process, the Immigration and Nationality Act (INA) requires the initial interview to be scheduled within 45 days after the application is filed and make a decision within 180 days after the application date. Under the defensive asylum process, applicants must go through the immigration court system, which faces significant backlogs.