A Path for Citizenship for Afghan Allies

Over 80,000 Afghan people arrived in the United States following the United States’ complete departure from Afghanistan in the Spring of 2021.[1] Many of these Afghans reside legally in the country through a status called United States humanitarian parole.  While this status allows for “temporary lawful presence in the United States,” it does not “provide any path to lawful immigration status.”[2] As such, the current path to lawful immigration status for Afghans on temporary humanitarian parole status is murky.  

As it stands, Afghans in the United States through humanitarian parole must take additional steps before their parole expires to “remain legally present.”[3]  These steps are limited to the types of immigration statuses already available including work authorization, green cards, follow-to-join relative status, and asylum.[4]  Because the parole ends in just two years, many on humanitarian parole will be subject to deportation unless they find a way to navigate the complex process of legal immigration status.  Thus, activists are calling on Congress to pass the Afghan Adjustment Act to create a clearer pathway to legal immigration status in the United States for these Afghans.[5]  

Perhaps most importantly, the Afghan Adjustment Act extends the humanitarian parole period through July 1, 2025.[6]  This gives Afghans on parole an additional two years to apply for legal immigration status.[7]  Additionally, the proposed Act “include[s] a discretionary waiver authority” that exempts Afghans “who worked as civil servants” or in any capacity with the Taliban “during a situation of hardship or duress.”[8] Under current law, Afghans who worked with the Taliban, even if due to hardship or duress, could be barred from legal immigration status for that reason alone.[9]

Practically, the Act provides a roadmap for Afghans to receive similar legal status as those who enter the United States as Special Immigrant Visa holders or refugees through the United States Refugee Admissions Program.[10] Advocates for the Act argue that many of the Afghans here through the parole system, if not virtually all, meet the legal definition of a refugee.[11] According to the United States Citizenship and Immigration Services, a refugee includes anyone who “is located outside of the United States,” and “is of special humanitarian concern to the United States,” among other qualifications.[12] Based on this wide definition, if those on parole had been admitted through the United States Refugee program, “they would have been eligible to adjust to lawful permanent resident status after a year.”[13]

Without this Act, it is likely the courts will receive tens of thousands of new asylum claims.[14] Currently, the United States allows for those on parole to show they have either been persecuted or have fear of persecution based on “race, religion, nationality, membership in a particular social group, or political opinion” to apply for affirmative asylum in the United States.[15] However, the process to apply for affirmative asylum is expensive, backlogged, and exceptionally complicated for non-English speakers.  Moreover, each Afghan on parole would need to have a “well-founded… fear of persecution.”[16] Many of those who fled Afghanistan rapidly in late Spring and Summer of 2021 left without documentation of their experience of persecution.[17]  As such, it seems that advocates are correct in advocating for this additional path considering the unique situation many Afghans are in following the abrupt United States departure from the country after almost 20 years of United States occupation.

Jacqueline Hayes is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See Alexandra Martinez, Afghan refugees call for a clearer path to citizenship, Prism Reports (Dec. 1, 2021), https://prismreports.org/2021/12/01/afghan-refugees-call-for-a-clearer-path-to-citizenship/.

[2] See US Citizenship & Immigration Servs., Information for Afghan Nationals on Requests to USCIS for Humanitarian Parole (Dec. 8, 2021), https://www.uscis.gov/humanitarian/humanitarian-parole/information-for-afghan-nationals-on-requests-to-uscis-for-humanitarian-parole.

[3] See id.

[4] See US Citizenship & Immigration Servs., Information for Afghan Nationals on Requests to USCIS For Humanitarian Parole (December 8, 2021), https://www.uscis.gov/humanitarian/humanitarian-parole/information-for-afghan-nationals-on-requests-to-uscis-for-humanitarian-parole.

[5] See generally Martinez, supra note 1.

[6] See id.

[7] See id.

[8] See id.

[9] EOA Factsheet: Afghan Adjustment Act, Evacuate our Allies, https://docs.google.com/document/d/1ZpbU47bLFD-un_Ly7bKWrL5P8o1-Q1qOSCmsMHAgFl4/edit (last visited Jan. 9, 2022).

[10] See Id.

[11] See id.

[12] US Citizenship & Immigration Servs., Refugees (Sept. 23, 2021), https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees.

[13] See Evacuate our Allies, supra note 9.   

[14] See id.

[15] See US Citizenship & Immigration Servs., supra note 4; Martinez, supra note 1.

[16] See Martinez, supra note 1.

[17] See Evacuate our Allies, supra note 9.