From the Evacuation of Kabul to Resettlement in Phoenix: The Legal Status of Afghan Refugees

By Maria McCabe.

At the end of last month, the United States’ 20-year war in Afghanistan ended with the chaotic evacuation of over 120,000 people from the Kabul airport, including U.S. citizens, Afghans, and citizens of other countries. What happens next presents intertwined logistical and policy challenges.

Logistically, the Biden administration plans to resettle at least 60,000 evacuated Afghan nationals in the U.S. in the near future. Some have already landed in the U.S., where they are being housed at military sites until refugee resettlement agencies confirm their placements. Others have been taken to emergency processing centers in countries like Germany and Qatar before coming to the U.S. All will be, or have been, thoroughly vetted. But once the government completes the gargantuan challenge of processing that many individuals, what will their legal status be in the United States?

Refugee Status

While the media reports refer to those evacuated as “refugees,” admission to the U.S. as a refugee implies something specific under U.S. immigration law. In line with international law, refugees have experienced persecution, or fear prosecution, based on race, religion, nationality, political opinion, or membership in a particular social group. In order to be admitted to the United States as a refugee, individuals must go through the lengthy U.S. Refugee Admissions Program (USRAP). On average, it takes 18 to 24 months to process an application for refugee resettlement. Unsurprisingly, many of those hurriedly airlifted out of Afghanistan did not complete this process.

Special Immigrant Visa (SIV)

Since 2009, two SIV programs have been available for Afghan nationals who worked with the U.S. government, including interpreters and translators who worked with the military and those who worked for or on behalf of the U.S. government, who also meet other requirements. Afghans who come to the U.S. with SIV status are eligible for permanent residency and eventually citizenship. However, for years these programs have been plagued by delay. For this reason, a number of veterans groups have been advocating for the resettlement of those who risked their lives alongside U.S. service members. While some of the evacuated Afghans had SIV status, others were still in the process of applying.

Humanitarian Parole

For everyone else, there is humanitarian parole.  Humanitarian parole is a mechanism to admit someone into the United States on a temporary basis due to a compelling humanitarian emergency. Customs and Border Protection has started to admit evacuated Afghan nationals into the United States using humanitarian parole, and the Biden administration intends to parole up to 50,000 Afghans. Using humanitarian parole in the midst of this urgent humanitarian crisis makes sense, but it is not a permanent solution. Afghan evacuees will be granted parole for two years, but they will not have an immigration status that allows them to remain permanently in the United States. Those currently in the SIV process will be able to complete that process and secure permanent residency, but other Afghans may have to apply for asylum—a process that is already horribly backlogged. In the meantime, parolees can apply for temporary employment authorization, but they are not eligible for most of the federally funded resettlement benefits that refugees, asylees, and SIVs receive.

Commentators have suggested several possible solutions. For example, although individuals must usually apply for refugee status outside of the U.S., some have proposed using refugee admission “slots” that would otherwise go unused for Afghan evacuees. The refugee admissions “ceiling” for the current fiscal year is 62,500, but the U.S. had only used 6,274 slots as of July 31. Advocates argue that the administration could legally process individuals already in the U.S. as refugees within the current refugee admissions ceiling. Others argue for creating a special path to citizenship for Afghans paroled into the United States, in line with a program under the Cuban Adjustment Act that gave Cubans paroled into the U.S. the ability to receive refugee resettlement services and apply for permanent residency. For now, the Biden administration has asked Congress for $6.4 billion in additional funding to resettle Afghans, and resettlement organizations will provide paroled Afghan families and individuals with some limited assistance through the Afghan Placement and Assistance Program.

Looking Forward in Arizona

In the last few weeks, Afghans evacuated from Kabul have started to arrive in Arizona, with 1,610 individuals, from the first group of almost 37,000 arrivals, expected to resettle in the state. Thankfully, welcoming Afghans has bipartisan support nationally and in Arizona. We have a moral obligation to resettle those who worked hand-in-hand with the U.S. military, U.S. government, or U.S.-based organizations, as well as their families and other Afghans endangered by American actions in Afghanistan. Additionally, refugee resettlement is good for Arizona. While refugees are eligible for government support when they first arrive in the U.S., a study found that between 2005 and 2014, refugees brought in $63 billion more in revenue than they cost federal, state, and local governments. In general, immigrants engage in entrepreneurship at disproportionately high rates, and hold key jobs in the U.S. economy, including those supporting our aging population. Essentially, refugee resettlement is a “win-win.”

Still, refugees, SIVs, and other Afghans who have recently arrived in the U.S. will need support  acclimating. Government programs, non-profit resettlement agencies, and the generosity of Arizonans and many other Americans will help. However, a clear path to permanent residency for Afghans paroled into the U.S. will be needed for these new arrivals to settle and thri

"Airplane" by Sean MacEntee is licensed under CC BY 2.0

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By Maria McCabe

J.D. Candidate 2023

Maria McCabe is a 2L Staff Writer from Massachusetts. She graduated from Northeastern University with a degree in Political Science and International Affairs. Before law school, she worked as a Career Coach with refugees and immigrants in Boston. She is on the board of the ASU student chapters of the American Constitution Society and International Law Society. When she is not studying, she enjoys skiing, traveling, and anything made with peanut butter.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.