Asylum, a protection granted to foreign nationals already in the United States or arriving at the border, is a beacon of hope for individuals fleeing persecution in their home countries. The U.S., recognized globally for its commitment to protecting human rights and upholding the principles of freedom and safety, offers this protection based on several grounds, including race, religion, nationality, membership in a particular social group, or political opinion. Asylum seekers who are granted this protection can stay in the U.S., apply for a work permit, request the immigration of their immediate family members, and eventually apply for a Green Card.
In this comprehensive guide to seeking asylum in the U.S., we will discuss the following topics.
What is Asylum?
Asylum is a form of humanitarian immigration relief that the United States extends to individuals who have fled their home countries due to persecution or a well-founded fear of persecution. Persecution, in this context, is serious harm or suffering inflicted on an individual because of their race, religion, nationality, membership in a particular social group, or political opinion.
Asylum protection is not automatic; individuals must apply for it and demonstrate that they meet the definition of a refugee according to U.S. law. Importantly, asylum can be claimed either affirmatively (by individuals who are not in removal proceedings) or defensively (by individuals who are in removal proceedings), depending on the circumstances.
The Difference Between Asylum, Refugee Status, and Withholding of Removal
While asylum and refugee status are closely related, they are not the same. Both are forms of protection available to people who meet the definition of a refugee. However, the principal difference lies in where the person is located when they apply. Asylum is for people who are already in the United States or at a U.S. port of entry, while refugee status is for people who are outside the U.S. and are of special humanitarian concern to the United States.
On the other hand, withholding of removal is a form of relief that prevents an individual from being returned to a country where their life or freedom would be threatened. While similar to asylum, it does not offer the same benefits, such as the ability to apply for permanent residence or to bring family members to the United States. It is typically sought by individuals who do not qualify for asylum but still fear returning to their home country.
Eligibility for Asylum
Asylum is a form of protection granted to individuals in the United States who have been persecuted or fear they will be persecuted due to race, religion, nationality, membership in a particular social group, or political opinion. However, not everyone who fears return to their home country may be eligible for asylum. Understanding the eligibility criteria is a crucial part of the asylum application process. Here are the key factors that determine eligibility for asylum in the United States.
Definition of a Refugee According to U.S. Law
The U.S. law defines a refugee as any person who is outside their home country and is unable or unwilling to return due to a well-founded fear of persecution based on their race, religion, nationality, political opinion, or membership in a particular social group. This definition is the basis for determining eligibility for asylum. An individual must convincingly demonstrate that they meet this definition to be considered for asylum in the U.S.
The One-Year Filing Deadline
In general, individuals must apply for asylum within one year of their last arrival in the United States. This one-year deadline is strictly enforced, with some exceptions.
Exceptions to the One-Year Deadline
Exceptions to the one-year filing deadline may be made if an individual can demonstrate either “changed circumstances” that materially affect their eligibility for asylum or “extraordinary circumstances” relating to the delay in filing. Such exceptions are evaluated on a case-by-case basis.
Bars to Applying for Asylum
Certain conditions may bar an individual from applying for asylum, even if they meet the definition of a refugee. These include, but are not limited to:
- Having a previous asylum application denied by an Immigration Judge or the Board of Immigration Appeals
- Being convicted of certain crimes, or posing a risk to the security of the United States.
Additionally, individuals who can be removed to a safe third country under a two-party agreement between the U.S. and that country may also be barred from applying for asylum.
The Asylum Application Process
The road to seeking asylum in the United States involves a detailed and structured process. This process, while daunting to some, is vital in ensuring that the U.S. government can thoroughly evaluate each applicant’s claim and provide protection to those who truly need it. To better navigate this journey, understanding the steps involved in the application process is essential. Here are the key stages in the asylum application process, from the initial application to the final decision.
Filing the Asylum Application
The first critical step in seeking asylum is to submit Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Citizenship and Immigration Services (USCIS). This form is used to collect comprehensive information about the applicant, including personal details, family data, and most importantly, the specific reasons for seeking asylum. It is paramount that the information provided is truthful, detailed, and consistent, as any discrepancies may complicate the process or even result in denial of the asylum application.
- Gathering Information: Form I-589 requires detailed personal information, including:
- The asylum applicant’s biographical data (such as name, date of birth, nationality, and immigration history)
- Information about the asylum applicant’s spouse and children
- A comprehensive account of their persecution experiences or well-founded fear of future persecution
- Information about the asylum applicant’s entry into the U.S., their travel history, and any previous interactions with immigration authorities
- Detailing Persecution: Asylum applicants must provide an extensive explanation about why they are afraid to return to their home country. This includes:
- Describing in detail the persecution they have suffered or fear they will suffer
- Outlining who carried out or would carry out this persecution
- Explaining why this persecution occurred or would occur
- Being as specific and detailed as possible, providing dates, locations, names, and descriptions of incidents, where available
- Document Preparation: Along with the completed Form I-589, asylum applicants should also:
- Prepare a personal declaration—a written statement detailing their story in their own words, further explaining and supporting what they included in the form
- Include any available documentation that corroborates their story, such as news articles, reports from human rights organizations, medical records, or letters from friends or family
- Submission: Once the asylum application form and supporting documents are prepared:
- Make a copy of everything for personal records
- Mail the application to the appropriate USCIS Service Center
To check the status of your asylum application, you can use the USCIS online case status tool and enter the receipt number you received after filing your application, or you can contact the USCIS National Customer Service Center.
The accuracy and completeness of the asylum application are fundamental to the asylum claim. Mistakes or omissions can lead to serious consequences, including denial of the asylum application. Therefore, it is often beneficial to work with an immigration lawyer or accredited representative when preparing the asylum application.
Asylum Application Fees
There is no USCIS filing fee to apply for asylum in the United States. This includes the initial application form (I-589, Application for Asylum and for Withholding of Removal) and the interview process. However, fees may apply for related processes such as work authorization or Green Card applications after asylum being granted.
The Asylum Interview
Once the I-589 form has been duly submitted, the asylum seeker will be scheduled for a biometrics appointment for fingerprinting, followed by an interview with an Asylum Officer. The interview is a critical juncture in the application process, providing an opportunity for the applicant to detail their experiences and substantiate their fear of persecution in their home country. The Asylum Officer will probe into the specifics of the applicant’s claim to determine their eligibility for asylum.
Waiting for a Decision
Following the interview, the asylum applicant will receive a decision on their case. The timeline for this can vary, but in general, applicants can expect to receive a decision within two weeks to several months. If the Asylum Officer approves the application, the individual is granted asylum. If the application is not approved at the Asylum Office level, the case is usually referred to the Immigration Court for further review by an Immigration Judge.
Rights and Benefits of Asylum Status
Being granted asylum in the United States not only provides protection from persecution but also opens doors to various rights and benefits, which are designed to help asylees rebuild their lives in a safe environment. These benefits range from the right to work to the ability to bring immediate family members to the U.S. Understanding these rights and benefits can help asylees make the most of their new status. Here are some of the key rights and benefits that come with asylum status.
Right to Work in the U.S.
One of the primary benefits of being granted asylum in the United States is the immediate right to seek employment. This right is not contingent on obtaining an Employment Authorization Document (EAD), also known as a work permit, which is a common requirement for many other immigration statuses. As soon as an individual is granted asylum, they can start working.
However, having an EAD can make the job search process smoother, as it provides a widely recognized proof of the individual’s eligibility to work in the U.S. To this end, asylees can apply for an EAD for convenience and documentation purposes, even though they are not required to have one to work.
The application for an EAD is made by filing Form I-765, Application for Employment Authorization, with U.S. Citizenship and Immigration Services (USCIS). There is no fee for asylees filing Form I-765. Once the EAD is granted, it is valid for two years and can be renewed.
One year after being granted asylum, asylees are eligible to apply for a Green Card (permanent residence). With a Green Card, they continue to have the right to work in the U.S., and the EAD is no longer necessary.
Social Services for Asylees
Asylees are eligible for certain social services and benefits to help them settle and start their new life in the U.S. These services, often provided by the Office of Refugee Resettlement, include job placement, English language classes, and medical assistance, among others.
Permanent Residence (Green Card)
One of the significant benefits of being granted asylum in the United States is the opportunity to apply for lawful permanent resident status, more commonly known as obtaining a Green Card allowing them to live and work permanently in the United States.
Asylees become eligible to apply for a Green Card one year after being granted asylum. The application process involves filing Form I-485, Application to Register Permanent Residence or Adjust Status. This form requires detailed personal information and proof of eligibility, which in the case of asylees includes a copy of the approval notice or court order granting asylum.
After the form is submitted and the processing fees are paid, USCIS will review the application. This process may include a biometrics appointment and possibly an interview. The applicant may also need to undergo a medical examination by a USCIS-approved doctor.
Once the application is approved, the asylee will receive a Green Card, which is typically valid for ten years and can be renewed. The Green Card allows the individual to live and work permanently in the U.S. It also offers the freedom to travel internationally with fewer restrictions than an asylum status.
A Green Card also brings the individual one step closer to U.S. citizenship. After five years of being a Green Card holder, they can apply for naturalization, provided they meet all other citizenship requirements.
Another significant benefits of being granted asylum in the United States is the opportunity to petition for immediate family members. This process, known as family reunification, can be a vital step for asylees who have had to leave their families behind.
Who is Eligible?
As an asylee, you can petition to bring over your spouse and unmarried children under the age of 21. It’s important to note that these relationships must have existed before you were granted asylum—that is, you must have been married, and your children must have been born or conceived before you were granted asylum.
To initiate the family reunification process, asylees must file a Form I-730, Refugee/Asylee Relative Petition, for each eligible family member. This form serves as a formal request to U.S. Citizenship and Immigration Services (USCIS) to recognize your family members as eligible for asylum status.
The I-730 form requires you to provide detailed information about the family member for whom you are petitioning, including their current location and the nature of your relationship. You will need to supply supporting documents, such as marriage certificates or birth certificates, to prove your relationships.
This form must be filed within two years of being granted asylum, unless there are humanitarian reasons that prevented you from filing within this period.
After you submit Form I-730, USCIS will review the application. This process can take several months. If the petition is approved, your family members will be eligible for consular processing, allowing them to go through the necessary procedures at a U.S. embassy or consulate in their home country to obtain the appropriate visas and come to the U.S. as derivative asylees.
Once in the U.S., your family members will have the same rights and benefits as you do. They can work immediately upon arrival and may be eligible for certain assistance programs. After one year, they can apply to adjust the status to lawful permanent residents, or Green Card holders.
Asylum status comes with significant rights and benefits designed to help asylees establish their lives in the United States. However, these rights also come with certain responsibilities, such as complying with U.S. laws and regulations. It’s crucial for asylees to understand these rights and responsibilities to make the most of their new status.
Denial of Asylum: What’s Next?
Receiving a denial on an asylum application can be disheartening and stressful. However, it’s important to understand that a denial is not necessarily the end of the road. There are multiple avenues an asylum seeker can explore post-denial, including appeals and alternative forms of relief. Here are the next steps an applicant can take after receiving a denial on their asylum application, providing hope and guidance during a challenging time.
If an asylum application is denied by an Asylum Officer, the case is usually referred to the Immigration Court for removal proceedings. In this case, the applicant has another opportunity to present their claim for asylum before an Immigration Judge. If the Immigration Judge also denies the asylum application, the decision can be appealed to the Board of Immigration Appeals (BIA) within 30 days. If the BIA decision is unfavorable, the applicant can further appeal to the U.S. Court of Appeals.
Other Forms of Relief: Withholding of Removal and Convention Against Torture
Even if an individual does not meet the criteria for asylum or has missed the one-year filing deadline, they might still qualify for other forms of protection, such as Withholding of Removal and protection under the Convention Against Torture (CAT). Both of these protections prohibit the U.S. government from returning individuals to a country where their life or freedom would be threatened. However, they do not provide the same benefits as asylum, such as the ability to apply for a Green Card or to petition for family members.
It’s important to remember that a denial of asylum is not necessarily the end of the road. There are options to appeal the decision and other forms of protection to consider. However, navigating these processes can be complex and challenging, and it’s advisable to seek legal assistance from an experienced asylum lawyer.
Common Misconceptions About Asylum
Asylum is a complex area of immigration law that is often misunderstood, leading to a number of misconceptions. These misconceptions can not only cloud public perception of asylum seekers, but also create unnecessary confusion for those seeking asylum themselves. To provide a clearer understanding of this crucial form of protection, here are some common misconceptions about asylum and the truths that debunk them.
- Asylum is Only for Political Activists: One common misconception is that asylum is only for individuals who have been politically active in their home country. While political opinion is one of the five grounds for asylum, it’s not the only one. Asylum can also be granted based on race, religion, nationality, and membership in a particular social group.
- Asylum Seekers Must Enter the U.S. Legally: Many people believe that to apply for asylum, one must enter the U.S. legally. In fact, individuals can apply for asylum regardless of their immigration status or how they entered the country. While entering illegally can complicate the process, it does not bar someone from seeking asylum.
- Asylum Seekers Can “Shop Around” for the Best Country: Another misconception is that asylum seekers can choose any country they like for asylum. In reality, international and U.S. law include the principle of “first country of asylum,” which generally means that individuals should seek asylum in the first safe country they reach.
- Asylum Claims are Usually Fraudulent: Some people believe that most asylum claims are fraudulent. However, each asylum claim is thoroughly examined and vetted by trained Asylum Officers and Immigration Judges. Fraudulent claims are typically weeded out during this rigorous process.
Understanding the truths behind these misconceptions can provide a clearer picture of asylum and the individuals who seek it. Always rely on accurate and credible sources of information when researching asylum and related topics.
How an Immigration Lawyer Can Help with Asylum
The process of applying for asylum in the U.S. can be challenging. It involves understanding complex legal principles, filling out detailed forms, collecting and presenting persuasive evidence, and possibly appearing before an Immigration Judge. This is where the expertise of an immigration lawyer becomes crucial. The following points illustrate the important roles an immigration lawyer can play in your asylum case:
- Understanding Your Case: An immigration lawyer can provide a thorough understanding of your case. They can assess your situation, identify potential grounds for asylum, and advise you on the best course of action.
- Preparing Your Application: Filling out the asylum application requires meticulous attention to detail. An immigration lawyer can help ensure that your application is complete, accurate, and presents your case in the best possible light.
- Gathering and Presenting Evidence: An immigration lawyer can guide you in gathering and presenting evidence to support your claim. This could include documents, witness testimonies, and expert opinions. An immigration lawyer will understand what kind of evidence is likely to be persuasive and how best to present it.
- Representing You in Court: If your case is referred to the Immigration Court, having an immigration lawyer to represent you can be crucial. An immigration lawyer can present your case, cross-examine witnesses, and make legal arguments on your behalf.
- Navigating Post-Decision Procedures: Whether your application is granted or denied, there are usually further steps to take. If you’re granted asylum, an immigration lawyer can guide you through processes such as applying for a Green Card or bringing family members to the U.S. If your application is denied, an immigration lawyer can help you understand your options for appeal or other forms of relief.
Hiring an immigration lawyer can significantly increase your chances of a successful outcome. By providing expert advice, preparing your application, and advocating on your behalf, a lawyer can guide you through the complex asylum process and help you navigate any obstacles that arise.
If you or a loved one are considering seeking asylum in the United States, don’t navigate this complex process alone. Reach out to our experienced asylum lawyer in Atlanta at Glenn Immigration Law Firm. Our team is well-versed in U.S. immigration laws and procedures, and we’re dedicated to helping individuals secure the protections they need.
The process of seeking asylum in the U.S. can lead to many questions due to its complex nature. Here are some of the most commonly asked questions, helping to clarify and simplify the asylum process for applicants.
Can I Work While My Asylum Application is Pending?
Yes, you can apply for work authorization if your asylum application has been pending for more than 150 days without a decision by USCIS, and you have not caused any delays in the process.
Can I Travel Outside the U.S. While My Asylum Application is Pending?
Traveling outside the U.S. while your asylum application is pending can be risky. If you leave the U.S., USCIS may consider your asylum application abandoned. However, you can apply for Advance Parole before leaving to avoid this.
How Long Does the Asylum Process Take?
The asylum process can vary greatly in length, depending on various factors such as the backlog of cases and the specifics of your case. As of my knowledge cutoff in 2021, it could take several years for an application to be processed.
Can My Family Members Also Receive Asylum?
Yes, when you apply for asylum, you can include your spouse and children who are in the U.S. and are under 21 and unmarried. If you are granted asylum, they will also receive asylum.
What If My Asylum Application is Denied?
If your asylum application is denied, you can appeal the decision. In most cases, a denial by an Asylum Officer will lead to referral to the Immigration Court for removal proceedings, where you will have another opportunity to present your asylum claim.
Can I Apply for Asylum If I’m in the U.S. Illegally?
Yes, you can apply for asylum regardless of your immigration status or how you entered the U.S.
Can I Apply for a Green Card If I’m Granted Asylum?
Yes, one year after being granted asylum, you can apply for lawful permanent resident status, or a Green Card.
Can I Be Deported If I’m Granted Asylum?
In rare cases, asylees can be deported if they no longer meet the definition of a refugee (for example, if conditions in their home country improve), if they committed certain crimes, or if they violated the terms of their asylum status.
Can I Apply for Asylum More Than Once?
Generally, you cannot apply for asylum more than once unless you can demonstrate “changed circumstances” that significantly affect your eligibility for asylum.
Can I Receive Public Assistance While My Asylum Application is Pending?
Asylum seekers are not typically eligible for most public assistance programs until they are granted asylum. However, they may be eligible for certain types of emergency or humanitarian aid.
What Happens If I Miss the One-Year Deadline for Applying for Asylum?
The U.S. government requires that you apply for asylum within one year of your last arrival in the U.S. If you miss this deadline, you may still apply, but you will need to show either extraordinary circumstances or changed circumstances that would justify the delay.
What Is the Difference Between Affirmative and Defensive Asylum?
Affirmative asylum is when an individual proactively applies for asylum after arriving in the U.S., while defensive asylum is when an individual requests asylum as a defense against removal from the U.S. The processes for the two types of asylum are slightly different.
Can I Bring My Family to the U.S. If I’m Granted Asylum?
Yes, if you are granted asylum, you can petition to bring your spouse and unmarried children under 21 to the U.S. You must file the petition, Form I-730, within two years of being granted asylum.
Can I Travel Back to My Home Country If I’m Granted Asylum?
Traveling back to your home country after being granted asylum can be risky. If you return to the country where you feared persecution, the U.S. government might determine that you no longer need protection and could terminate your asylum status.
How Do I Prove My Fear of Persecution?
Proving a fear of persecution involves presenting evidence that demonstrates you have a “well-founded fear of persecution” on account of race, religion, nationality, political opinion, or membership in a particular social group. This evidence could include witness testimony, news articles, human rights reports, and more.
Can I Apply for Asylum If I Overstayed My Visa?
Yes, overstaying your visa does not prevent you from applying for asylum. However, an overstay could have other immigration consequences.
What If I’m Detained While My Asylum Application Is Pending?
If you are detained by immigration authorities while your asylum application is pending, you have the right to continue with your asylum application. In certain cases, you may be eligible for release on bond.
Can I Study While My Asylum Application is Pending?
Yes, you can attend school while your asylum application is pending. However, to attend college or university, you may need to change your immigration status to a student visa.
Can I Apply for Asylum Even If My Country Is Not at War?
Yes, you do not need to be from a country at war to apply for asylum. Asylum is granted based on a well-founded fear of persecution due to race, religion, nationality, political opinion, or membership in a particular social group, not based on whether your country is at war.