By Melissa Box, J.D. Class of 2023
In August 2021, you may have been shocked by the images of Afghans fleeing the Taliban. The media was flooded with chaotic images of Afghan men and women risking their lives desperately clinging to the side of departing aircrafts. It is hard to understand the terror and desperation these men and women felt. They chose to risk death over persecution by the Taliban.
Some people were able to leave, and others are still trying to find a safe way out of Afghanistan. For those who managed to leave, their story did not end on August 30, 2021 when the last United States Military flight departed, marking the end of a 20-year occupation. The quick fall of the Afghan Government resulted in 120,000 Afghans being airlifted with around 76,000 entering the United States. Despite the Afghan Airlift being the “largest non-combatant evacuation airlift in U.S. history,” there is no track to permanent residency in the United States for those who were airlifted, unlike what was offered to Cubans in 1950s or the Southeast Asians in 1970s. Instead, the Afghans, some with only their clothes on their back, arrived in the United States and dove into the process of attempting to attain a Special Immigrant Visa or Asylum.
Current Procedures are Ineffective
A Special Immigrant Visa (SIV) is a path to lawful permanent residency under the Afghan Allies Protection Act of 2009 for Afghans employed for at least one year by the U.S. Government or International Security Assistance Force (ISAF) and who have or are experiencing ongoing serious threats. The Special Immigrant Visa was created to demonstrate the U.S. commitment to allies who risked their lives working with the U.S. military. The historic, prototypical qualifying job is an interpreter for the U.S. military, but people with other jobs may also qualify, including trusted workers such as the forward operating base’s cooks or maintenance workers. With the evacuation of Afghanistan, the Emergency Security Supplemental Appropriations Act (2021) added an additional 8,000 visas for total of 34,500 visas for a twenty-year occupation by the U.S. military. The Center for Migration Studies determined that, despite this increase, as of September 22, 2021 there were 18,000 principal SIV applicants and only 13,000 visas available. If you are confused, you are not alone.
Despite a streamlined process starting in July 20, 2022, the Chief of Mission approval required to apply for a Special Immigrant Visa is extensive. The application requires paperwork verification of employment with the U.S. that many Afghans fleeing the Taliban did not have the ability to take with them or destroyed in fear of being detained by Taliban on the way to the airport.
The danger to our allies remains and has increased with the U.S. evacuation and the Taliban takeover. How is there a limit on the number of visas available that does not match the number of Afghans employed and whose families and their own lives were at risk by mere association with the U.S.? At a minimum, if the U.S. fails to provide allies with benefits promised, this failure would create a national security risk by exposing to the world that the U.S. does not fulfill its promises currently and potentially in future conflicts.
Failing to establish eligibility for a Special Immigrant Visa, Afghans turn to affirmative asylum as a pathway to permanent immigration status in the United States. Asylum is granted when an applicant demonstrates they need “protection because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group, and/or political opinion.” This means that Afghan asylum applicants must provide concrete evidence of threat to them personally by the Taliban. There must be connection to this persecution based upon one of the protected grounds listed above. Again, this is difficult to prove because, for their own safety, many Afghans destroyed evidence as they fled that would support reasons the Taliban would kill them.
Under the Extending Government Funding and Delivering Emergency Assistance Act, Afghans who were evacuated to the U.S. are being prioritized in the asylum process. Afghans who arrived in the evacuation who submit an application for asylum are supposed to have an interview with an asylum officer scheduled within 45 days of their filing and a decision within 150 days.
Both a Special Immigrant Visa and Asylum ultimately lead to legal permanent residency and, after five years of legal permanent residency, citizenship. However, the systems are backlogged and do not adequately take into account the circumstances that Afghan evacuees faced as they left Afghanistan. The US government should follow the precedent established during the Vietnam War and streamline the process for Afghans to apply for and receive legal permanent residency. As the evacuees navigate job qualifications, a new culture, language barriers, and difficulties accessing affordable housing, a streamlined process to legal permanent residency would allow for these evacuees to truly embrace their new life without fear of deportation.
What is the Afghan Adjustment Act?
Spoiler alert: the Afghan refugee crisis is not over until the men and women we helped to evacuate are resettled with permanent immigration status. Currently, most Afghans who were evacuated in 2021 are admitted into the U.S. in a temporary status called humanitarian parole with no clear path to permanent residency.
What is the United States government doing to fix this crisis? Currently, no sustainable solution has been implemented. The United States’ answer should be the enactment of a current bipartisan bill, the Afghan Adjustment Act. The Act’s protections would apply to those evacuated who received Humanitarian Parole, lawfully admitted and inspected Afghans present in the US prior to the bill, those who arrive after the bill’s passage who supported the US mission in Afghanistan, or are spouses or unmarried children of eligible individuals.
Afghans who would qualify under SIV would be eligible to become a legally permeant resident if they meet four requirements: (1) Chief of Mission (COM) approval (worked directly with U.S. forces or employee of U.S. government/International Security Assistance Force for two years), Priority 1 or 2 referral to U.S. refugee admissions program, or had a SIV application submitted prior to July 31, 2018; (2) submits application for SIV; (3) otherwise admissible to the U.S.; and (4) vetted for national welfare, safety, and security.
This process for SIV is in line with the Emergency Security Supplemental Appropriations Act that allowed SIV applicants since July 20, 2022 to apply for Chief of Mission (COM) approval and SIV in a shorter process that eliminates the second step of submitting a Form I-360 application to USCIS. The bill does not defined “how,” but it does require Department of Homeland Security to generally streamline the process. The bill would also expand who would qualify for SIV from interpreters and those working directly for U.S. such as base workers to now include members of Afghanistan National Army Special Operations Command, the Afghan Air Force, the Special Mission Wing of Afghanistan, the Female Tactical Teams of Afghanistan, and their direct family members. This is significant because these organizations worked directly with the U.S. and are considered at-risk of serious harm in Afghanistan. However, Afghans who worked in these organizations did not previously qualify for an SIV because they only worked with and not for the U.S.
Most importantly, the Act would also create a pathway for Afghans who don’t qualify for SIV to gain legal permeant residency outside of the asylum process. To gain legal permanent residency, Afghans would have to meet the following requirements: (1) be present in the United States for two years on humanitarian parole; submit the application for adjustment of status; (2) be admissible to the U.S.; and (3) vetted for national welfare, safety, and security.
Furthermore, for all eligible Afghans, the bill would prohibit charging fees that would be cost-prohibitive. This policy change would allow the immigration system to be more accessible for Afghans. The bill is comprehensive in proposing a one-year, five-year, and ten-year strategy to facility immigration of Afghans stuck in Afghanistan or third party countries by providing remote processing options and mechanisms for relocating individuals.
For Americans concerned about safety, the bill also contains background and security checks ensuring each applicant is vetted. In fact, the bill requires a baseline adjustment of status vetting—compliance with immigration regulations and interview—as well as additional vetting conducted by the Department of Homeland Security such as maintaining biographic, biometric information, criminal history, and history of all vetting procedures undertaken noting if in person of all applicants. All of these internal U.S. vetting procedures are on top of vetting and screening procedures already conducted in third countries and the medical screenings conducted on U.S. bases.
Supporters of the Act were hoping for passage in August 2022 with a larger government spending resolution. The initiative was not successful. The good news is that the bill still has bipartisan support. The new goal is for the bill to be passed by Congress in the yearly National Defense Authorization Act on or about mid-December.
What can you do to help? Remind Congress that the crisis is ongoing. Contact your congressman and tell them your thoughts. There will always be another world crisis. But the United States played a significant role in the Afghan Humanitarian Crisis, and we must fulfill our promises. Focus on the men and women behind each of these applications, their gratitude they have for the opportunity to be in this great country, and the limbo these individuals are caught in.