Eligibility for U.S. Resettlement
In order to qualify under the U.S. resettlement program a refugee normally must (a) be of a designated nationality and fall within the priority categories for that nationality in that region; or, (b) be referred by a U.S. embassy, UNHCR or a non-governmental organization (NGO); and (c) meet the U.S. definition of refugee as determined by the DHS/USCIS; and (d) not be excludable under INA Section 212(a). A practical consideration is (e) that the refugee must have access to a U.S. refugee processing post or DHS/USCIS officer and (f) not be firmly resettled in any foreign country. The following are additional details about these criteria:
(a) Designated Nationalities
Designated nationalities are those nationalities the U.S. considers to be of particular concern for the U.S. resettlement program. Persons from these nationalities, and who fall in specific priorities, can be considered for resettlement at designated US refugee processing posts without referral by UNHCR or an embassy. Non-designated nationalities must have a UNHCR, NGO or U.S. embassy referral to be considered for resettlement.
(b) Priority Categories
Priority categories are used to determine a refugee's ties to the US. A refugee must fall under one of the priority categories in order to qualify for an interview with the US program. The State Department defines the priority categories as follows:
(i) Definitions
Priority One: Individual Referrals
UNHCR-referred, non-governmental agency (NGO) or Embassy-identified persons with compelling protection needs or those for whom no other durable solution exists. This processing priority is available to persons of any nationality.
Priority Two: Group Referrals
Groups of special concern to the U.S. It includes specific groups (that could be defined by their particular nationalities, clans, ethnicities, religions, location, or combination of such characteristics) identified by the Department of State in consultation with USCIS, non-governmental organization (NGOs), UNHCR, and other experts. Current groups are:
In Country of Origin
Former Soviet Union: Applies to Jews, Evangelical Christians, Ukrainian Catholic and Orthodox religious activists identified in the Lautenberg Amendment, with close family in the United States.
Cuba: Includes human rights activists, members of persecuted religious minorities, former political prisoners, forced-labor conscripts, persons deprived of their professional credentials or subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or actual political or religious beliefs or activities, and persons who have experienced or fear harm because of their relationship - family or social - to someone who falls under one of the preceding categories.
Vietnam: Includes the few remaining active cases eligible under the former Orderly Departure Program (ODP) and Resettlement Opportunity for Vietnamese Returnees (ROVR) programs. In addition, it includes the Humanitarian Resettlement initiative opened during FY 2006 to permit consideration of individuals who, due to no fault of their own, were unable to access the ODP program prior to its cut off date. It also includes Amerasian immigrants, whose numbers are counted as refugee admissions.
Iraq: Iraqis Associated with the United States Government Under various Priority 2 designations, including those set forth in the Refugee Crisis in Iraq Act, employees of the USG, a USG-funded contractor or grantee, and U.S. media and NGOs working in Iraq, and certain family members of such employees, as well as beneficiaries of approved I-130 (immigrant visa) petitions, are eligible for refugee processing in Iraq.
Outside Country of Origin
The admission program will continue to process several Priority 2 groups including:
Ethnic Minorities and others from Burma in camps in Thailand
Ethnic Minorities and others from Burma in Malaysia
Burundians in Tanzania
Bhutanese in Nepal
Iranian Religious Minorities
Sudanese Darfurians in Iraq
Iraqis Associated with the United States Government
Eritreans in Shimelba
Priority Three: Family Reunification Cases
The Priority 3 category is family-based and only open to designated nationalities, which are listed in the chart below. To qualify for access under Priority 3, an applicant must be outside of his or her country of origin, have an Affidavit of Relationship (AOR) filed on his or her behalf by an eligible “anchor” relative in the United States during a period in which the nationality was included on the eligibility list, and be cleared for onward processing by the DHS/USCIS Refugee Access Verification Unit (RAVU).
The following relatives of the U.S.-based anchor are eligible for inclusion on the case: spouses, unmarried children under 21, or parents. Qualifying anchors are persons who were admitted to the United States as refugees or were granted asylum, including persons who are lawful permanent residents or U.S. citizens who were initially admitted to the United States as refugees or were granted asylum.
On October 22, 2008, PRM stopped accepting any new P-3 applications. Following a revision of procedures which are likely to include DNA testing, the P-3 program may resume in late 2009. For more information, please click here.
*Libyan, North Korean, and Palestinian cases must be referred to State Department for review before a DHS/USCIS interview can be authorized.
(ii) Lautenberg Amendment
An amendment made to the 1990 Foreign Operations Appropriations Bill, established a presumption of refugee eligibility for certain categories of persons from the former Soviet Union and Southeast Asia. The Soviet categories are essentially those described in priority two. The Southeast Asian groups are defined as those groups identified in the 1983 INS Overseas Guidelines. The categories are in large part incorporated into priority two definitions. In addition, the amendment provided for the adjustment of status of certain persons paroled into the U.S. from these groups.
Although membership in a category provides a presumption of refugee status, a refugee falling within such a category must still meet the refugee definition as defined in INA Section 101(a)42. In practice, DHS/USCIS might not find a person who falls into one of the eligible categories to meet this definition. DHS/USCIS may offer public interest parole to individuals falling into one of these categories after they have denied the person refugee status.
(iii) Specter Amendment
This amendment was passed in January 2004. The amendment includes a one-year extension of the provision to facilitate refugee adjudication for religious minorities from the former Soviet Union. The amendment was expanded to include religious minorities from Iran. It will create for a review of the denied Iranian religious minority cases.
(c) Regional Considerations When Determining Eligibility for Processing
Persons referred on a P-1 basis can be processed outside of their regions of origin. Refugees falling into other priorities are usually required to be in their region of origin to be processed. If the refugee is outside of his region special authorization from State Department may be needed. This request should be referred through UNHCR Washington (for UNHCR offices) or directly to State Department (for non-UNHCR agencies). For example, a Sudanese P-3 case cannot be processed in Latin America without first obtaining special authorization from State Department and DHS/USCIS in Washington. In practice, however, the US has processed some groups outside of their region, notably Iranian P-2s. Persons falling into a P-1 category, e.g. a UNHCR referred case, can be processed outside of their regions of origin and do not need special authorization from Washington.
(d) US Refugee Definition
A person must meet the U.S. refugee definition as stated in INA Section 101(a)42. The first paragraph of the U.S. definition parallels the definition found in the 1951 Convention and 1967 Protocols on Refugee Status Determination, but with some significant additions. Under section (B) the U.S. can recognize persons as refugees who are still in their country of origin. Also, there are special provisions for establishing presumptive claims to refugee status for persons who have undergone forced abortions, sterilization or who have otherwise have been adversely affected by coercive population control measures. This was originally to deal with Chinese cases but is not limited to this nationality. The U.S. definition reads as follows:
The term "refugee" means:
(A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or
(B) in such special circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term "refugee" does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
(e) Exclusion Factors
Section 212(a) of the INA lists the many grounds for exclusion that bar a person from being admitted to the US. These grounds for exclusion apply to all immigrants, and with certain exceptions, to all refugees. Grounds for exclusion can be grouped roughly into four categories: health-related grounds (certain communicable diseases or physical and mental disorders); moral/criminal grounds (e.g., persons convicted of serious or multiple crimes, prostitutes, drug traffickers); public charge (i.e., persons lacking adequate financial resources, however this is waived for refugees); and security grounds (see below). Refugees are given a medical screening to check for excludable communicable diseases, in particular, HIV, tuberculosis, and venereal diseases. There are a number of other miscellaneous reasons for exclusion including, polygamy, misrepresentation of facts on visa applications, smuggling, and having been deported from the US in the previous year.
Security grounds include suspected terrorists, or aliens whose presence in US would have serious adverse foreign policy consequences. Security grounds also include persons who were or are members of the Nationalist Socialist (Nazi) Party, Communist Party, or other parties which advocate totalitarianism. There are, however, a number of exceptions provided for former Communist Party members. Membership in any organization that the State Department has deemed to be a terrorist organization is grounds for exclusion. State Department has issued an extensive list of these organizations which will be updated annually. The list is available from State Department, or from UNHCR Washington. After September 11, 2001 the U.S. government has enacted an additional security checks as well which can lead to formal exclusion, or may lead the US to decline to admit a refugee on a discretionary basis.
Waivers can be applied for certain grounds of exclusion. Grounds of exclusion which cannot be waived are membership in the Nazi Party, participation in genocide, conviction for serious crimes (such as murder, rape, armed robbery, hijacking), and conviction for drug trafficking.
(f) Refugee Processing Posts
A final practical consideration is that a refugee must have access to U.S. adjudicators. This is done via circuit rides or at a post where the DHS/BCIS maintains a permanent presence. DHS or OPE posts are as follows: (NB: Changes to the list below are likely in FY 2007)
Accra, Cairo, Havana, Ho Chi Minh City, Istanbul, Kathmandu, Mexico City, Moscow, Nairobi, Vienna, Bangkok
Persons not at the above locations may still be referred for an interview; however, this will require a DHS/USCIS circuit ride. DHS/USCIS travel to such locations is not predictable and depends on the number of cases and the availability of DHS/USCIS officers, etc. A pre-requisite for any DHS/USCIS travel in a new site is clearance by the U.S. Regional Security Officer. In some instances, individual cases will have to be transferred to a DHS/USCIS post for interview.
See also: "Access to the U.S. Refugee Admissions Program," U.S. State Department, September 2006
