Straight Path to Legal Permanent Residence for Afghan Evacuees Would Build on Strong U.S. Precedent
Editor's note: This commentary was updated on March 16, 2022 to reflect the Biden administration's designation of Temporary Protected Status for Afghans in the United States.
Seven months after the Taliban seized control of Afghanistan, more than 76,000 Afghans airlifted out of the country are settling into new homes in communities across the United States. Yet a significant obstacle affects their integration: The vast majority have an uncertain immigration status called “parole,” which grants the right to live and work in the United States but provides no direct path to permanent residence or U.S. citizenship. Permanent residence gives immigrants the assurance to invest in their lives and careers and to find ways to contribute to their new country.
Under normal circumstances, the United States confers refugee status on people abroad deemed in need of protection. This designation brings with it eligibility to apply for permanent residence (a “green card”) within one year of arrival and the ability to apply for U.S. citizenship four years after that. However, refugee status is typically conferred through overseas processing, a lengthy procedure that could not be activated under the crisis conditions of the Afghan exodus. As a result, about 72,500 Afghans were admitted through parole, which leaves them in indeterminate status. On March 16, the Biden administration announced it will grant Temporary Protected Status (TPS) to Afghans in the United States. This grant will help Afghans with temporary visas that are set to expire or have expired. But TPS, like parole, does not offer a certain future.
There is a solution, though, one rooted in historical precedent and U.S. national interests: Congress could provide evacuated Afghans a straightforward path to permanent residence by passing an adjustment act for this population.
The Problem of Pathways Short of Permanent Residence
The Homeland Security Secretary has the authority to use parole to allow entry of foreign nationals who lack a visa or other claim to U.S. status if there is an urgent humanitarian reason or significant public benefit.
Some Afghans now in the United States were already in the process of applying for a Special Immigrant Visa (SIV) when evacuated, based on their work for one year or more for the U.S. government or allied forces since 2001. And a small number may have relatives who can sponsor them for a green card. But the majority do not have a direct path to a durable legal status.
The most straightforward pathways available—an SIV or asylum—are arduous and backlogged, with uneven outcomes that are ill suited for Afghan evacuees. Putting tens of thousands of Afghans through complicated individual SIV and asylum determinations would be incredibly burdensome for applicants, the U.S. government, and legal and resettlement service providers. Most Afghans are likely to be in legal limbo for long periods, clouding their futures and adding to the already sizeable population of immigrants in the country living with impermanent and uncertain statuses.
Applying for an SIV from inside the United States requires an onerous, multistep, multiagency process. It includes first applying to the State Department by submitting letters from a U.S.-citizen supervisor and relevant human resources department and a detailed description of threats experienced, followed by two rounds of applications to U.S. Citizenship and Immigration Services (USCIS)—first for the SIV and then for a green card.
People applying for asylum must demonstrate that they need protection because they have experienced persecution or have a well-founded fear of persecution in their home country based on one of five specified grounds: race, religion, nationality, political opinion, or membership in a particular social group. Applicants must submit evidence to corroborate their claims, including general evidence about conditions in their country and specific evidence about their individualized experiences or fear of persecution. For Afghans, this can mean providing concrete evidence that the Taliban know about their past ties to the United States or other foreign governments.
These complexities mean that many Afghans may not succeed in their SIV or asylum applications. Given the dangers of the evacuation process and the need to pass through Taliban checkpoints, many Afghans destroyed or left behind documents linking them to foreign governments—the very evidence needed to qualify for status in the United States. Further, many Afghans who worked for the United States or its allies cannot complete the requirements for an SIV because the contracting company that hired them no longer exists, or they cannot locate their supervisor to request a recommendation. And Afghans who ever worked under a Taliban government, paid a bribe to the Taliban to get through a checkpoint, or who were forced to assist the Taliban in any way can be found ineligible for asylum or an SIV based on U.S. laws that bar people who assisted a terrorist group. Finally, applicants for asylum or SIVs fare much better when they have legal representation, but private legal assistance is beyond the means of most Afghan evacuees and low-cost legal providers are already overwhelmed in serving migrants who recently arrived at the U.S.-Mexico border.
More broadly, given the overseas criminal and terrorist screenings that the U.S. government already conducted, this further labyrinth of procedural requirements for Afghan evacuees is needlessly redundant. The very reason Afghans were evacuated and provided U.S. refuge is because they faced life-and-death conditions in Afghanistan. That reality should not have to be repeatedly established individually, given conditions now and for the foreseeable future in Afghanistan.
Adjustment Acts: A Well-Tested Alternative
The United States has employed a simpler approach in similar situations. In 1975, at the end of the Vietnam War, the U.S. government evacuated more than 100,000 Vietnamese, first to U.S. territories and then to the U.S. mainland. As with Afghans today, the Vietnamese evacuees were paroled into the United States and provided with resettlement assistance.
In 1977, Congress passed an adjustment act that offered Vietnamese and other South Asians who had escaped to the United States the opportunity to adjust to permanent resident status after two years. The move was in recognition of the sacrifices this population had made for the U.S. war effort and in acknowledgement that these evacuees were here to stay.
The 1977 law followed a string of examples of the United States using a combination of parole and adjustment acts for humanitarian protection and in alignment with foreign policy interests. Throughout the Cold War, the United States used this strategy to help people fleeing Communist governments.
Following the establishment of the Attorney General’s parole authority in 1952, the government admitted more than 30,000 Hungarians who fled after their country’s 1956 revolution, the majority as parolees. In 1958, Congress passed a law opening a path to permanent residence for Hungarian parolees.
With the Fair Share Act of 1960, Congress authorized the Attorney General to parole in refugees through 1962, and offered those parolees a path to permanent residence after two years. From 1962 to 1966, the United States paroled in roughly 15,000 Chinese who fled communist China for then British-controlled Hong Kong. The 1965 amendments to the Immigration and Nationality Act provided them a pathway to permanent residence. And, following the exodus of hundreds of thousands of Cubans in the aftermath of the Cuban Revolution, Congress passed the 1966 Cuban Adjustment Act, which allows Cubans who have been admitted or paroled into the United States and lived here for over a year to adjust to permanent resident status.
In all cases, applicants were required to prove that they were otherwise eligible for immigration to the United States and did not have any disqualifying criminal records. For many adjustment acts, certain bars to immigration—related to documentation requirements, the potential of becoming a public charge, and sometimes past immigration violations—were waived.
Congress enacted the Refugee Act of 1980 in part to replace this ad hoc method of refugee admissions with a system that acknowledged humanitarian flows as an ongoing reality. The law provides for flexibility in establishing the number and nationalities of refugees to be admitted annually, authorizes adjustment from refugee to permanent status, and provides resettlement assistance and access to certain public benefits. While it sought to replace the significant use of parole and adjustment acts, it did not preclude future individual adjustment acts.
The U.S. government enacted adjustment acts in 1990 for certain parolees from the Soviet Union or Southeast Asia, in 1999 for Iraqi nationals who had been evacuated by the United States from Iraq to Guam, and again in 2001 for some Southeast Asian parolees who had not previously adjusted status. Thus, specialized legislation has continued, when U.S. political and foreign policy interests call for it.
Without an Adjustment Act: Strain to Already Overloaded Systems
In advance of the September 2021 continuing resolution that extended government funding through early December, the Biden administration requested that Congress allow Afghan parolees with one year of U.S. residence to be able to adjust to permanent resident status, subject to vetting and other immigration requirements—essentially, an Afghan Adjustment Act. Congress instead called on USCIS to expedite asylum processing for Afghans.
Asylum and SIV processes are already severely backlogged. As of October, nearly 20,000 principal applicants (not counting their relatives) were in the SIV pipeline. Further, USCIS has a backlog of more than 400,000 asylum cases. Adding tens of thousands of Afghan evacuees into existing backlogs will further overload already strained adjudication systems.
The resource limitations are much the same for refugee resettlement agencies that are already straining to provide resettlement services critical to helping Afghan parolees establish new lives and for low-cost legal service providers already busy offering assistance to recent border crossers.
A Pressing Need for Action
Beyond keeping new burdens off already strained systems, passing an adjustment act for Afghans would provide the assurance that enables Afghans to invest completely in their future success in the United States.
The United States has already determined that the Afghans it evacuated and paroled are vetted, deserving of protection, and should be allowed to build new lives here. While additional security vetting would be sensible, these Afghans should not be forced to individually re-establish their eligibility and the government should not be forced to readjudicate it. Congress should provide a streamlined pathway to an enduring legal footing for Afghans—sooner than later.