Ethiopian Marathoner Makes Defiant Gesture for Asylum at Race’s Finish
If you were watching the Men’s Marathon yesterday at the Olympics, you may have been caught off guard by the actions of the Silver Medalist, Feyisa Lilesa, as he approached the finish line. Comfortably ahead of American and Bronze Medalist, Galen Rupp, and behind Gold Medalist, Eliud Kipchoge, he held his hands up in a seemingly X pattern above his head. In running, making an X signal above your head is a sign of distress and that you cannot articulate it, but you need assistance immediately.
Mr. Lilesa did not need medical assistance. Instead, his X was symbolic, and he was signaling that his life and the lives of his family members and tribe (Oromo) in Ethiopia are in danger. Post race comments that he gave clarified why he made the distress signal. They also elucidated the levels of danger that his family members and tribe suffer in Ethiopia as the ruling government has cracked down severely in certain areas of the country. The state broadcaster in Ethiopia did not air a replay of the finish because the X signal has been a symbol of solidarity among the Oromo tribe.
The comments that made indicate that he will be seeking asylum. Asylum is an internationally recognized basis for migration and countries in the Western Hemisphere often end up providing safehaven for those escaping persecution in other areas of the world. Countries have different laws for obtaining asylum. The United States’ standard for asylum is developed upon establishing past persecution or a well-founded fear of future persecution. It also requires that persecution to emanate from one of five protected grounds: race, religion, particular social group, political opinion, or nationality. These categories are developed through case law in immigration courts and through the federal courts. The government in the home country is either the persecutor or it is unable or unwilling to stop the persecution from occurring. Asylum can be a difficult proposition because the asylum seeker cannot just claim that his or her country is in chaos, civil war, rebellion, or unrest. The seeker needs to demonstrate past persecution has happened or that there is a well-founded fear he or she will be targeted for harm in the future.
Seeking Asylum in the U.S.
To seek asylum, a seeker must be in the United States. It can be a slog of a process, especially since adjudication times for affirmative asylum have skyrocketed into 2.5-3 years. For those unable to obtain asylum, there may still be an option through withholding of removal. Asylum cases require a lot of preparation and documentation to establish the veracity of the seeker’s claims. Filing for asylum affirmatively (with USCIS and not with the immigration court) requires an interview with an Asylum Officer at a designated Asylum Office.
USCIS has released processing times for the applications they process. Information is not available for cases pending at the Potomac Service Center. Receipt numbers that begin with the letter string YSC are at the Potomac Service Center. These processing times are as of June 30, 2016. Here are some points of note:
- O and P visa processing times have been shortened.
- H-1B processing time has been reduced.
- VAWA applications are at 5 months.
- Employment Cards are still taking over 3 months for the most part.
- U Visa processing is stuck.
- Most EB-1 and EB-2 petitions are around 4 months at the Texas Service Center, but they are taking more time at the Nebraska Service Center. The National Interest Waiver is taking nearly 9 months in Nebraska.
- Fiance and many family-based petitions are taking 5 months for processing.
- An application to remove conditions on permanent residence is taking 10 months for processing.
The Atlantic Writes About Extraordinary Ability: The O-1 Visa
The Atlantic has written a lengthy piece on the O-1 visa, which is reserved for individuals of extraordinary ability. With a maximum period of 3 years and indefinite renewals, it is a viable option for individuals who are at the top of their fields. The O-1 is used in the entertainment industry and in athletics. It is also used by scientists and artists.
The piece’s purpose is to show how this visa is used today. It points out that the number of applications and approvals of cases have increased recently. The number of O-1 approved cases has tripled in the past decade and 83,000 visas were approved in 2014. Whereas the H-1B visa is subject to a strict cap, the O-1 is without a cap. It does, however, carry a higher standard for approval. An applicant must meet three out of eight criteria (you can also win a Nobel Prize or Pulitzer Prize). There is still a consular process to undergo and there is a chance the consular officer can deny a visa. The other advantage of an O-1 visa is that support staff can be brought along through an O-2 visa and dependents can tag along with the O-3 visa. A petitioner or agent is needed to sponsor the beneficiary.
Extraordinary ability is not just used in the non-immigrant context. For immigration petitions, an alien of extraordinary ability is a kind of self-petition that does not even require a sponsoring employer. Except for the upcoming visa bulletin, it is also in a visa category that is always current for a Green Card, meaning that a Green Card application can be filed concurrently with the application. There are three ways to file for an extraordinary ability petition: multinational executive or manager, outstanding professor or researcher, and alien of extraordinary ability. The multinational executive or manager classification requires a sponsoring employer.
DOJ Petitions for New Supreme Court Hearing: DACA Plus and DAPA
The Department of Justice has filed a petition for a rehearing with the Supreme Court on the United States v. Texas case. This is the DACA/DAPA case that was decided with a 4-4 deadlock last month. That tie rendered the DACA plus and DAPA programs unable to go into effect. The decision left the ruling of the Fifth Circuit Court of Appeals in effect. The Fifth Circuit had upheld the decision of the district court in Texas, in which the federal judge had ruled the programs could not go into effect. The reason was that the Obama Administration had not followed the procedures of the Administrative Procedure Act for promulgating and implementing rules with President Obama’s executive actions for DACA plus and DAPA programs.
The reason that there were eight Supreme Court justices ruling on the case instead of the traditional nine is because Justice Antonin Scalia died during the term and a replacement has not yet been voted on and approved by the Senate. The Department of Justice is petitioning for a nine member court to hear its case on behalf of DACA plus and DAPA. It states in its petition, “[t]his Court therefore should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide in-junction of such significance.”
August Visa Bulletin: USCIS Announces Only Final Action Date Can Be Used
The August Visa Bulletin was released last week, and it contained significant retrogressions (EB-2 worldwide). Other categories have been experiencing retrogression as the fiscal year draws to a close. September 30 is the final date of the fiscal year and October 1 is the inaugural day of the new fiscal year. USCIS announced that the final action priority date cannot be used for filing adjustment of status applications. This is instead of the more friendly filing action priority date, which is usually a few months before the final action priority date. This is for employment-based and family-based adjustment of status applications.