Chapter 4 - Applicability of Statelessness in Adjudicative Review
Stateless persons are part of a vulnerable population and may encounter unique difficulties while applying for immigration benefits. USCIS may consider statelessness, depending on the circumstances, as a favorable factor in the exercise of discretion. It may also be a relevant factor in rendering a decision on various immigration benefit requests or other actions including, but not limited to, deferred action, parole in place, asylum and refugee status, U and T nonimmigrant statuses, and temporary protected status (TPS). Where a noncitizen is stateless, it is the country of last habitual residence that must be considered in determining eligibility for refugee status, asylum,[1] or TPS.[2]
The officer may request a statelessness report during the adjudication of any relevant immigration application, petition, or request or when considering any other action or request where information on statelessness may be useful in determining identity or may serve as a factor in rendering a final decision.
A. Relevance to Deferred Action Requests
Deferred action is an act of prosecutorial discretion to delay or defer the removal of a noncitizen. During a period of deferred action, DHS does not remove a noncitizen from the United States. Deferred action does not constitute a lawful immigration status and does not excuse any past periods of unlawful presence.
DHS considers deferred action requests on a case-by-case basis and the decision whether to grant such a request is a matter of discretion. Statelessness may be a relevant factor when reviewing a deferred action request. Because stateless individuals may have no means to provide evidence of nationality, and since it may be impracticable to remove a stateless noncitizen from the United States, there may be both humanitarian concerns and other relevant factors associated with statelessness to consider when reviewing a deferred action request.
Employment Authorization
If USCIS approves the deferred action request, noncitizens may request employment authorization by properly filing an Application for Employment Authorization (Form I-765). In general, employment authorization for noncitizens granted deferred action is only provided at USCIS’ discretion and only if the individual “establishes an economic necessity for employment.”[3]
B. Relevance to Parole in Place Requests
Parole may be granted, on a case-by-case basis, to noncitizens present in the United States who are applicants for admission.[4] This use of parole is referred to as “parole in place.”[5] A noncitizen who is present in the United States without admission is considered an applicant for admission.[6] Parole in place may be granted only on a case-by-case basis for urgent humanitarian reasons or a significant public benefit, and where the noncitizen demonstrates that they merit a favorable exercise of discretion.[7]
A noncitizen granted parole in place meets the “inspected and admitted or paroled” requirement for INA 245(a) adjustment of status purposes and parole is considered a “lawful immigration status” solely for purposes of INA 245(c)(2).[8] However, a grant of parole in place does not relieve the noncitizen from meeting all other eligibility requirements for adjustment of status, including that they warrant the favorable exercise of discretion.[9]
Statelessness may create unique vulnerabilities and difficulties for a noncitizen located in the United States who may otherwise be at risk of return. This may be relevant to the exercise of discretion in the officer’s consideration of the noncitizen’s parole in place request.
Employment Authorization
A grant of parole generally does not automatically confer employment authorization in the United States.[10] If USCIS approves the parole in place request, the parolee may request work authorization by properly filing Form I-765.[11]
C. Relevance to Asylum and Refugee Processing
USCIS may approve refugee classification or grant asylum to noncitizens who have been persecuted or fear they will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion and are otherwise eligible for those benefits. Statelessness creates specific vulnerabilities that may be relevant in these humanitarian adjudications.
Refugee classification is a determination that an applicant is eligible for a form of protection that may be granted to noncitizens who meet the definition of refugee, who are of special humanitarian concern to the United States, who are not firmly resettled, and who are not subject to or granted a waiver of any applicable grounds of inadmissibility. Generally, refugees are persons living outside of their country of nationality (or, if stateless, outside their country of last habitual residence) who are unable or unwilling to return to that country because they were persecuted in the past or fear persecution in the future or both. Noncitizens may seek a referral for refugee classification from outside of the United States.[12]
Asylum is a form of protection that may be available to noncitizens who meet the definition of refugee and are either already in the United States or are seeking admission at a port of entry. Noncitizens may apply for asylum in the United States regardless of their country of origin or their current immigration status.[13]
As part of the asylum and refugee processes, USCIS officers consider whether a noncitizen may be stateless, as it may be a relevant factor in identifying place of last habitual residence for purposes of analyzing past and future persecution and in establishing identity.
Employment Authorization
Applicants for asylum may apply for employment authorization in the United States after their asylum application has been pending for 150 days but are not eligible to receive employment authorization until the asylum application has been pending for another 30 days, for a total of 180 days.[14] A noncitizen granted asylum is immediately authorized to work, even if such grant occurs before USCIS makes a decision on their application for employment authorization.
Noncitizens admitted to the United States as refugees are employment authorized incident to status and are authorized to work for the duration of status.[15] Upon admission, refugees are provided with an Arrival-Departure Record (Form I-94), which serves as an acceptable receipt establishing both identity and employment authorization for 90 days.[16] Following arrival and admission, refugees receive an Employment Authorization Document with a Notice of Action (Form I-797C).
D. Relevance to U and T Nonimmigrant Status Processing
T nonimmigrant status is an immigration benefit that enables certain victims of a severe form of trafficking in persons to remain in the United States for an initial period of up to 4 years if they have complied with any reasonable request for assistance from law enforcement in the detection, investigation, or prosecution of human trafficking, or qualify for an exemption or exception.[17] Crime victims may also be eligible for U nonimmigrant status, which is a status for victims of certain crimes (including trafficking) who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of certain criminal activity.[18]
Stateless noncitizens may be at increased risk of being trafficked. Officers handling T visa and certain U visa claims often consider whether a noncitizen may be considered stateless for immigration purposes, as it may be a relevant factor in analyzing the underlying circumstances surrounding the trafficking, establishing identity, and determining whether other eligibility requirements have been met.
Employment Authorization
By statute, USCIS has discretion to provide employment authorization to noncitizens with pending, bona fide U nonimmigrant status petitions.[19] U petitioners placed on the waiting list are also eligible for deferred action and employment authorization.[20] Principal U and T nonimmigrants are authorized to work incident to status and do not need to file a separate Form I-765.[21]
E. Relevance to Temporary Protected Status
The Secretary of Homeland Security may designate a foreign country for TPS due to an ongoing armed conflict, environmental disaster, epidemic, or other extraordinary and temporary conditions.[22] USCIS may grant TPS to noncitizens who are already in the United States and are eligible nationals of designated countries (or parts of countries), or to noncitizens having no nationality who last habitually resided in the designated foreign country.[23] Therefore, statelessness is a relevant factor in determining eligibility for TPS where the noncitizen claims or appears to have no nationality and last habitually resided in a TPS-designated country.
Employment Authorization
Applicants for TPS may apply for employment authorization concurrently with their TPS application or may choose to apply for employment authorization separately at a later date by filing Form I-765.[24] TPS applicants may receive employment authorization before USCIS makes a final decision on their TPS application if they demonstrate that they are prima facie eligible for TPS.[25]
Footnotes
[^ 1] This policy clarifies when USCIS generally considers a noncitizen to be stateless for purposes of an immigration benefit or other request. Neither the agency’s internal process of considering statelessness, nor an adjudicator’s decision that an applicant may be considered stateless for purposes of an immigration benefit or other request, create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
[^ 2] See INA 101(a)(42)(A).
[^ 3] See 8 CFR 274a.12(c)(14). For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
[^ 4] The basic authority for parole in place is provided at INA 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.”
[^ 5] See legacy Immigration and Naturalization Service (INS) General Counsel Opinion 98-10, 1998 WL 1806685. This legacy INS General Counsel’s opinion was later endorsed by the then-INS Commissioner. See Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a designated Port-of-Entry, issued April 19, 1999. In 2007, the then-DHS General Counsel concurred with the 1998 INS General Counsel’s opinion in relevant part. See Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the Immigration and Nationality Act, issued Sept. 28, 2007. The same DHS General Counsel’s opinion rejected a conclusion that the 1998 General Counsel had reached on a separate issue related to release from detention under INA 236(a)(2)(B) (so-called “conditional parole”). See Matter of Castillo-Padilla (PDF), 25 I&N Dec. 257 (BIA 2010) (agreeing with DHS that “conditional parole” under INA 236(a)(2)(B) does not constitute parole under INA 212(d)(5)(A)). This chapter only addresses noncitizens present in the United States without inspection and admission. It does not address those who were previously authorized parole when overseas to come to the United States as a parolee. Noncitizens who apply for parole from outside the United States (a process generally referred to as humanitarian or overseas parole), who then travel to the United States and are paroled in by U.S. Customs and Border Protection may seek an additional parole period while in the United States. This request for an additional parole period is sometimes referred to as a request for re-parole. See the Humanitarian or Significant Public Benefit Parole for Individuals Outside the United States webpage for more information on parole issued to noncitizens living abroad.
[^ 6] See INA 235(a) (expressly defining an applicant for admission to include “an alien present in the United States who has not been admitted”).
[^ 7] See INA 212(d)(5)(a).
[^ 8] See 8 CFR 245.1(d)(1)(v). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 3, Unlawful Immigration Status at Time of Filing (INA 245(c)(2)) [7 USCIS-PM B.3].
[^ 9] See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, “Inspected and Admitted” or “Inspected and Paroled,” Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].
[^ 10] There are some limited exceptions. For example, effective November 21, 2022, Ukrainian and Afghan parolees, and their qualifying family members, with certain classes of admission are considered employment authorized incident to parole, which means that they do not need to wait for USCIS to approve their Form I-765 before they can work in the United States. See News Alert, Certain Afghan and Ukrainian Parolees Are Employment Authorized Incident to Parole, issued November 21, 2022.
[^ 11] For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
[^ 12] See the Refugees and Asylum webpage.
[^ 13] See INA 208(a)(1). See the Refugees and Asylum webpage.
[^ 14] See 8 CFR 274a.12(c)(8). For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
[^ 15] See 8 CFR 274a.12(a)(3).
[^ 16] See Handbook for Employers (M-274), 7.3 Refugees and Asylees.
[^ 17] See INA 101(a)(15)(T). For more information, see Part B, Victims of Trafficking [3 USCIS-PM B].
[^ 18] See INA 101(a)(15)(U). For more information, see Part C, Victims of Crime [3 USCIS-PM C].
[^ 19] See INA 214(p)(6).
[^ 20] See 8 CFR 214.14(d)(2).
[^ 21] For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
[^ 22] See INA 244(b).
[^ 23] See INA 244(a).
[^ 24] For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].