How To Apply For Asylum In USA

October 25, 2021

How To Apply For Asylum In USA

Every year, people who are escaping persecution seek asylum in the United States. The law allows people to apply for asylum because they are escaping persecution in their home country. Seeking asylum is generally a complex process that may involve several government agencies.

Those whose asylum applications are approved can reside permanently in the US. They can also access the path to citizenship and apply for their immediate family members to join them in the US.

What is Asylum?

Asylum in the US is a form of protection given to foreigners who are either already present in the United States or arrive at the border and fit into international law’s definition of a “refugee.”
According to the United Nations 1951 Convention and 1967 Protocol, a refugee is a person who fails to obtain protection in their home country, or is unwilling or unable to return to their home country due to persecution in the past or a legitimate fear of persecution in the future.

The persecution can be based on religion, race, nationality, political opinion, or membership in a social group.

Who is Eligible to Apply for Asylum?

You may file for asylum if you appear at an entry point of the United States. Regardless of your immigration status, you can apply for asylum in the US within a year of your entry into the country.

If you apply after one year of your entry in the US, you may be granted an exception if you demonstrate:

Altered circumstances that substantially impact your eligibility, or;
Extraordinary circumstances linked to delay in filing.

Even if you are eligible for an exception, it is essential to file your application within a reasonable period.

Altered circumstances may include:

Changes in circumstances in your country of nationality or, if you are stateless, the country where you last resided;
Changes in conditions that considerably affect your qualification for asylum in the US, such as changes in US law and activities in the country of feared persecution that put you at risk;
If you are listed as a dependent in someone else’s pending asylum application, the loss of parent-child or spousal relationship to the principal applicant resulting from death, divorce, marriage, or turning 21 years old.

Extraordinary circumstances may take into account:

Severe illness or physical or mental disability, such as effects of persecution or going through serious harm in the past, during the 1-year time window since your arrival in the US;
Legal disability, such as being an unaccompanied minor or having a mental impairment, during the 1-year time window since your arrival in the US.

Types of Asylum

There are two major types of asylum in the US – Affirmative Asylum and Defensive Asylum:

Affirmative Asylum

Affirmative asylum is when you apply for asylum in the US with the US Citizenship and Immigration Services (USCIS). To apply, you must be physically present in the United States.

Once you are present in the US, you can apply for affirmative asylum no matter how you arrived in the country and no matter what your immigration status is. To file your application, you have to submit a Form I-589, Application for Asylum and Withholding of Removal, to the USCIS. There is no government fee for this application.

If you want to include your spouse, you must be married before entering the US as a refugee or before you were granted asylum. Unmarried children under 21 years old can also be derivatives of the principal asylum applicant. In addition, you will be required to appear at a biometric appointment and be fingerprinted for a government background check. You will also be required to appear at an asylum interview before your case can be decided.

If your affirmative asylum application is denied, you can be placed in removal proceedings and face deportation. Remember that you should apply for asylum within a year of your arrival in the United States unless you can prove that changes or extraordinary circumstances led to the delay.

If your application is approved, you will receive an approval notice in the mail. After you are approved, you must wait a year to apply for a green card. The green card application is done with the Form I-485. You must submit a complete package to the USCIS and wait for an adjustment of status interview before receiving your green card in the mail. A green card holder can apply for US citizenship after five years of continuous permanent residence in the US.

The entire process can take up to 4-6 years. If 180 days have passed since you applied for asylum and you have not had an interview, you become eligible to apply for an employment authorization document. If approved, you will receive a social security card and permission to work in the US. You are allowed to renew the employment authorization until your asylum application is decided.

If your case is denied by the USCIS after the asylum interview, you will have a chance to request asylum to an Immigration Judge.

Defensive Asylum

You can apply for a defensive asylum in the US if:

Your Affirmative Asylum case was denied;
You are detained and in removal proceedings.

Defensive asylum is done through the Immigration Courts. The judge will hear your claim as an asylum seeker. An attorney for the government, will generally oppose your case.

If the judge decides that you should be granted asylum, you will be allowed to remain in the US. The judge will then issue an Order granting your asylum. After one year with the order, you can apply for a green card by submitting the Form I-485 package to USCIS. You will then appear at an adjustment of status interview in front of an immigration officer to make sure you still qualify for a green card.

On the other hand, if the immigration judge determines that you are ineligible for asylum, the judge will decide if you are suitable for any other relief from removal. You, as well as the US government, have the right to appeal the immigration court’s decision.

The defensive asylum process is conducted in the immigration court, and the process usually takes years to decide.

Asylum Questions

The immigration officers and immigration judges will consider the following criteria when deciding your asylum claim. These questions must be answered truthfully on your Form I-589 application.

a)Have you experienced harm, mistreatment, or threats in the past?
b)Do you fear harm or mistreatment if you return to your home country?
c)Do you have a criminal background in US or any other country?
d)Do you belong to associations, organizations or groups in your home country?
e)Do you continue to participate in those organizations or groups?
f)Have any of your relatives ever applied for asylum in US?
g)After leaving the country in which you are claiming asylum, did you travel through or reside in any other country before entering the US?
h)Have you or any family member ever received lawful status in another country?

The information you provide in the application, the supporting evidence, and your testimony during the interview will be used to determine whether you will be granted asylum in the US.

Final Thoughts

It is important to have a complete asylum application package with good evidence and strong legal arguments. Asylum is a discretionary relief so it is critical that you do it right the first time. Having asylum in the US means that you do not have to worry about being removed to your home country where you faced persecution. In addition, as an asylee, you can apply for documentation to work in the US. You will receive protection from persecution that you otherwise would not receive if you were in your home country.

Moreover, you can also apply for a green card and eventually for US citizenship. Asylum status typically never expires, and only in particular circumstances can the USCIS terminate it.