By Mike Arnone, J.D. Class of 2022
Since the chaotic withdrawal of American forces from Afghanistan in August 2021, more than 76,000 Afghans have been evacuated to the United States. A majority were granted parole under Operation Allies Welcome, allowing them to legally remain in the United States for two years. In March, the Department of Homeland Security (DHS) announced that it would grant Temporary Protected Status (TPS) to Afghans living in the United States prior to March 15, 2022. Eligible Afghans can apply for TPS, which shields them from deportation for 18 months and allows them to apply for a work permit. Yet parole and TPS are only temporary in nature. Both can be renewed periodically, but this is not guaranteed, and they neither confer permanent status nor create a pathway to it.
The best pathways to permanent status for Afghans granted parole or TPS are the Special Immigrant Visa (SIV) Program or asylum. These remain backlogged, however, and are fraught with obstacles. Afghans who worked for the United States or its allies for a year or more are eligible for SIV. Applying for SIV is a multi-step, multiagency process. It requires, among other things, a letter of recommendation from an American supervisor, a description of the threats experienced that resulted from working for the United States or its allies, and two interviews with U.S. Citizenship and Immigration Services (USCIS). Any claims made in a SIV application must be corroborated, but access to necessary evidence can be difficult, if not impossible, because applicants have left it behind in Afghanistan while fleeing the country, it has been destroyed, or is simply inaccessible under the Taliban regime.
Asylum, similarly, requires applicants to demonstrate that they have experienced or have a well-founded fear of persecution based on one of five grounds: race, religion, nationality, political opinion, or membership in a particular social group. Asylum applicants must submit evidence to corroborate their claims, but such evidence—as with SIV applications—is often difficult, if not impossible, to provide.
Taken together, it is probable that many Afghans living in the United States under either TPS or parole will struggle to obtain permanent status either through SIV or asylum. Even with legal representation—which many Afghans simply cannot afford—these pathways do not guarantee the permanent status that America’s Afghan allies deserve.
A legislative solution, in the form of an Adjustment Act, seems best-suited to addressing the deficiencies in the SIV and asylum pathways. There is historical precedent for this. Congress passed an Adjustment Act in 1977 that offered Vietnamese and other Southeast Asians who fled to the United States in the wake of the Vietnam permanent status after only two years in the country. During the Cold War, the federal government paroled refugees from communist states and they were later offered a pathway to permanent status through similar legislation. Such laws were not blank checks—applicants still had to prove they were otherwise eligible for permanent status—but they removed many of the hurdles imposed on certain groups of parolees by the circumstances of specific conflicts. Although Congress recently required USCIS to interview Afghan asylum applicants within forty-five days of submission and render a decision within 150 days of the interview, there are no such requirements for Afghan SIV applicants, who are much more likely to see their applications languish among a backlog of cases. In the meantime, there is little guarantee that Afghans’ temporary status will be renewed. DHS is not obligated to renew parole after it expires, and TPS must be renewed by the sitting administration every 18 months. Afghans who sacrificed so much for the United States in a 20-year conflict deserve more than temporary measures and ad hoc solutions. A permanent, legislative solution that provides a pathway to permanent status to Afghans living in the United States is necessary and long overdue.
William & Mary Law School Immigration Clinic Blog 