FAQ

The Convention Against Torture

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WHAT IS THE CONVENTION AGAINST TORTURE (CAT)? You may have seen or heard the term CAT in connection to the asylum process, but what is it? Introduction The first step in seeking asylum protection in the U.S. is to file an I-589 asylum application. On the Form I-589 asylum application there is a little checkbox next to a question asking if you are also seeking WIthholding of Removal or  protection under the Convention Against Torture (CAT).  That is why it is important that you know what it is and how it may help you. If you don’t check that little box on the I-589 then you will waive your right to protection under the additional section of law.  CAT is going to apply to anyone who is seeking asylum or fears returning to their home country for fear of persecution.  In this post I will explain what the Convention Against Torture is, how it came to be, how it may help you, how you apply for it, and who is eligible.  What is CAT? The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Convention Against Torture (CAT), is an international human rights treaty adopted by the United Nations General Assembly in 1984. The Convention defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information, punishment, or intimidation, and which is carried out by a public official or a person acting with official authorization or consent. It also prohibits other forms of cruel, inhuman, or degrading treatment or punishment, which may not reach the threshold of torture but still violate human dignity. The Convention requires state parties to take effective measures to prevent torture and other cruel, inhuman, or degrading treatment or punishment, to investigate and prosecute allegations of torture, and to provide redress and rehabilitation for victims of torture. It also prohibits the use of evidence obtained through torture in legal proceedings. As of February 2023, 169 countries have ratified or acceded to the Convention, making it one of the most widely accepted human rights treaties in the world. How Does CAT Apply to Immigrants Entering the U.S.? The Convention Against Torture applies to all people under the jurisdiction of a state party, regardless of their nationality or immigration status. This means that the United States is obligated to comply with the Convention in its treatment of all individuals within its territory or under its control, including immigrants and refugees. Under the Convention, the United States is prohibited from deporting or extraditing any individual to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. This is known as the principle of non-refoulement. The United States has incorporated this principle into its domestic law through the Convention Against Torture implementing legislation. In addition, the United States has an obligation to ensure that individuals in its custody are not subjected to torture or other forms of cruel, inhuman, or degrading treatment or punishment. This includes immigrants who are detained by the United States government. The United States is required to provide effective safeguards against torture and to investigate and prosecute any allegations of torture or other mistreatment of individuals in its custody. Furthermore, the United States is obligated to provide redress and rehabilitation for victims of torture, including immigrants who have been subjected to torture or other forms of mistreatment. This includes access to medical care, legal assistance, and compensation for any harm suffered as a result of torture or mistreatment. It is important to note that the United States has been criticized by human rights organizations for its treatment of immigrants, particularly with regard to the conditions in detention centers and the use of force by immigration enforcement officials. APPLYING FOR CAT PROTECTION IN REMOVAL PROCEEDINGS Who is Eligible for Protection Under CAT? This is not a detailed an exhaustive guide. This is the basic information. If you are interested or think it may apply to you then you should speak with an immigration attorney or contact me (an immigration attorney) for more information about the convention against torture.  Under the Convention Against Torture (CAT), any person who is in the United States, regardless of their nationality or immigration status, is eligible for protection against torture or other cruel, inhuman, or degrading treatment or punishment. This includes refugees, asylum seekers, and individuals who have entered the country without authorization. The CAT defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information or a confession, punishing, intimidating, or coercing someone, or for any other reason when such pain or suffering is inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. Therefore, any individual who has reason to believe that they are at risk of being subjected to torture or other forms of cruel, inhuman, or degrading treatment or punishment in their country of origin, or any other country to which they might be returned, may be eligible for protection under the Convention. In the United States, an individual seeking protection under the CAT may file an application for protection with the Department of Homeland Security (DHS). The application is known as a “CAT application” or a “Convention Against Torture claim.” The applicant must demonstrate that it is more likely than not that he or she would be tortured if returned to their home country or to another country where they are likely to be subjected to torture. If the application is granted, the individual will be protected from deportation or removal to the country where they would face torture.  How Do You Apply for CAT? First, remember what I said earlier. You must check the box on the Form I-589 … Read more

Employment Authorization

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Who Qualifies for a Work Permit in the United States? Only individuals with legal residency (green cards), U.S. citizenship, or specific types of work visas are eligible to work in the U.S. without obtaining an Employment Authorization Document (EAD) beforehand. Additionally, only a limited number of individuals will meet the criteria for obtaining a work permit. Foreign nationals residing in the United States are not permitted to work unless they have obtained explicit authorization through their visa or other legal status, or have obtained a separate work permit. It is important to note that a work permit is distinct from a green card. Instead, it is an Employment Authorization Document (EAD) issued by the U.S. Citizenship and Immigration Services (USCIS). The EAD serves as a form of photo identification, similar to a driver’s license, and allows holders to demonstrate their eligibility to work. When hiring new employees, all U.S. employers are required to request proof of immigration status or the right to work. Employers who fail to comply with this regulation may face sanctions. Which Non-Citizens Don’t Need to Separately Apply for a Work Permit? All green card holders (lawful permanent or conditional residents) automatically have permission to work in the United States. They simply need to show their green card to employers. Immigrants who become U.S. citizens can also work and can provide their U.S. passport or naturalization certificate or social security cards to employers, since US citizens are obviously permitted to work in the country without any special permission. Foreign nationals who have obtained work-based visas sponsored by U.S. employers are also eligible to work in the United States. Examples of such visas include the H-1B (for specialty workers), L-1 visa (for intracompany transferees), E-3 visa (only for Australians), and E treaty trader or treaty investor visa (for employees of companies registered as treaty traders or treaty investors in the United States). Those here in other immigration status must obtain employment authorization by applying for it. Who Is Eligible to Apply for a Work Permit There are various groups of individuals who have the option to apply for a “work permit” or Employment Authorization Documents (EAD) from U.S. Citizenship and Immigration Services (USCIS) if they want to pursue employment. It is important to note that a foreign national who is eligible for an EAD must actually apply for and obtain said authorization before they are permitted to take employment. These categories encompass individuals such as asylees, individuals with a pending application for adjustment of status (a green card), spouses of different visa holders, individuals with Temporary Protected Status (TPS) or Deferred Enforced Departure (DED), F-1 students facing economic hardship or seeking optional practical training (OPT), K-1 fiancé visa holders, DACA recipients, U nonimmigrants (and starting in 2022, individuals with a pending U visa petition that was found to be bona fide), special immigrant juveniles who have an approved I-360 and have been granted deferred action while they are waiting for a visa to become available, parolees, and the list goes on. The categories are too numerous to mention here, but a complete list can be found in the instructions accompanying USCIS Form I-765 (the work permit application form). Those Not Eligible For Employment Authorization Individuals in the US on a B-1 visitor visa (or tourist visa) and individuals that are in the United States with no lawful status are not eligible to obtain employment authorization. USCIS does not authorize these individuals to work in the United States, and it is indeed illegal for them to do so or for employers to hire them. Of course, the thirteen million + non citizens in the US with no lawful status do have to work to live here and they do. There are potential immigration consequences for working without authorization but some people have no choice. If a non citizen is going to work in the United States without authorization it is recommended that they get a Tax Identification Number and file tax returns every year so they can show they are not violating US tax laws. How to Apply to USCIS for a Work Permit To apply for an Employment Authorization Document (EAD), you will need to complete USCIS Form I-765. Additionally, you must provide supporting documentation demonstrating that you fall into a category of individuals eligible to apply for work permits. You should also attach photos and include the necessary fee. Please read the instructions carefully, as some categories of applicants may be exempt from paying a fee. Some people are eligible to renew their employment authorization online (asylum applicants and asylees for instance). You can find out more on the USCIS website. Employment authorization can now be issued for as long as 5 years per new USCIS policy. Applicants can always renew their work authorization once it expires so long as they remain eligible. There are noncitizens who have been renewing their employment authorization ever year for decades.

Temporary Protective Status (TPS)

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Congress created TPS as part of the Immigration Act of 1990. The law, found at 8 U.S.C. § 1254a, allows the Secretary, after consultation with appropriate agencies of the Government, to designate a country (or part of a country) for TPS due to ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions.

U VISA QUESTIONS

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Questions & Answers: U Nonimmigrant Status What forms do I need? Principal Applicants: ► Form I-918, Petition for U Nonimmigrant Status ► Form I-918, Supplement B, U Nonimmigrant Status Certification ► Form I-192, Application for Advance Permission to Enter as a Nonimmigrant (if your client is inadmissible under any ground found at INA § 212(a)) ► Form I-912, Request for Fee Waiver (if your client requires a waiver of the Form I-192 filing fee) Derivative Applicants: ◊ Form I-918A, Petition for Qualifying Family Member of U-1 Recipient ◊ Form I-192, Application for Advance Permission to Enter as a Nonimmigrant (if derivative is inadmissible under any ground found at INA § 212(a)) ◊ Form I-765, Application for Employment Authorization (filed for derivative applicant only; not needed for principal) ◊ Form I-912, Request for Fee Waiver (if your client requires a waiver of the Form I-192 and/or Form I-765 filing fee) Can I get a waiver of the filing fee? U Visa applicants can request a fee waiver for the I-192 and I-765. There is no fee for the I-918 and I-918A, and thus, no need for a fee waiver. NOTE REGARDING I-192 FILING FEE: See Notice of Settlement Agreement in Vangala v. U.S. Citizenship and Immigration Services, No. 4:20-cv-08143 (N.D. Cal.)) A request for a fee waiver should be made on Form I-912. USCIS will exercise its discretion to grant a fee waiver when an applicant: a) is receiving a means-tested benefit, b) has a household income of 150% or below of the poverty guidelines, or c) can demonstrate financial hardship. You can claim eligibility for a fee waiver on multiple grounds. You should submit evidence in support of your request for a fee waiver. Typically that evidence will include: tax returns, pay stubs, utility bills, rent receipts, medical bills, etc. TIP: You should note on the cover letter that you are requesting a fee waiver so USCIS doesn’t automatically reject your submission as missing the filing fee without seeing that you were requesting it be waived. Does the Form I-918, Supplement B, U Nonimmigrant Status Certification expire? The Form I-918, Supplement B, is valid only six months from the date of certification. What happens while I am waiting for my I-918 to be adjudicated and for visas to be available? Read about the bona fide determination process for Form I-918 nonimmigrant visa petitioners. As a U nonimmigrant when can I apply for lawful permanent residence? Pursuant to INA § 245(m), a U nonimmigrant must be able to demonstrate three years of continuous physical presence in the United States, in valid U nonimmigrant status, in order to be eligible to apply for lawful permanent residence. What other requirements are there for legal permanent residency based on U nonimmigrant status? According to INA § 245(m) a U nonimmigrant must also be able to demonstrate that:  The applicant is not inadmissible under INA § 212(a)(3)(E);  The applicant has not unreasonably refused to provide assistance to an official or law enforcement agency…after the alien was granted U nonimmigrant status, as determined by the Attorney General, based on affirmative evidence; and  A favorable exercise of discretion is “justified on humanitarian grounds, to ensure family unity, or is in the public interest.” My U visa was granted but why does my U nonimmigrant status and employment authorization document (EAD) expire in four years? U nonimmigrant status is issued for a maximum period of four years under 8 C.F.R. § 214.14(g)(1). Why were my derivatives granted U nonimmigrant status for less than four years? Derivative U status (U-2, U-3, U-4, and U-5) cannot be granted for a period not to exceed the initial grant period of the principal U applicant (U-1). What if a derivative is granted U nonimmigrant status for less than three years and therefore won’t enough time in U nonimmigrant status to be able to adjust with the principal? The derivative may be eligible to extend their U nonimmigrant status allowing them to accrue the three years they need in U status needed for adjustment of status to legal permanent resident. Can I obtain employment authorization being in U nonimmigrant status? The regulations providing eligibility for employment authorization are found at 8 CFR § 274a.12:  (a)(19) – an alien in valid U-1 nonimmigrant status  (a)(20) – an alien in valid U-2, U-3, U-4, or U-5 nonimmigrant status If my U visa is approved can I travel outside the US? This is a somewhat complicated question and you can read more about traveling abroad with an approved U visa here. Individuals in U nonimmigrant status are eligible to apply for a U visa abroad at a U.S. consulate and may be able to use that visa to reenter the United States after a trip abroad. It is highly likely that any travel outside the US would raise issues with unlawful presence bars since the recipient of U nonimmigrant status most likely accrued unlawful presence in the United States. You would need to talk with an immigration attorney to determine if it is possible in your particular case but typically it would not be advisable. If USCIS already met its cap on U Visas for 2023 when does the next year start? When the new fiscal year begins on October 1, 2023, USCIS will resume approving principal petitions for U-1 nonimmigrant status starting with petitions filed on or before July 31, 2016, prioritizing the oldest petitions. What is the Bona Fide Determination Process and how does that work? To learn about the bona fide determination process and how USCIS processes Form I-918 petitions for U Nonimmigrant status as well as what happens to applicants waiting years for their U visas to get approved please visit that FAQ page.

FAQ: Freedom of Information Act

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