Asylum

What You Need to Know About Seeking Asylum in the United States

Each year, people come to the United States seeking protection because they have suffered persecution in their country of origin or nationality.  They may also seek protection if they fear they will suffer persecution if they return to their home country. In 2021, almost 17,700 people were granted asylum in the United States.

People can be eligible for this protection – which is called asylum – based on their race, religion, political opinions, nationality, or membership in particular social groups. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded these protections to include individuals who are forced to undergo forced sterilization, abort a pregnancy, or who have been prosecuted for failing to comply with other forms of coercive population control.

If asylum is granted, then asylees can enjoy work authorizations, get a Green Card, and eventually apply for U.S. citizenship.  Asylees may also qualify for financial, medical, educational, vocational, and housing assistance, helping them integrate economically and socially into the United States.

Keep reading to learn more about how to seek asylum in the United States.

3 Ways to Obtain Asylum in the United States

When seeking asylum in the United States, you can do so through:

• The affirmative process

• The defensive process

• An asylum merits interview

We’ll explore each in detail below.

The Affirmative Process

To obtain asylum through the affirmative process, you must be physically present in the United States, no matter how you arrived in this country.  Your current immigration status does not matter, as long as you’re physically present. However, you cannot be a U.S. citizen.

Additionally, you must meet the following requirements to file for affirmative asylum:

• You have never been issued an Alien Registration Number, beginning with the letter A and followed by 7- 9 digits; or

• You have been issued an Alien Registration Number, but you are not currently participating in Executive Office for Immigration Review (EOIR) proceedings; or

• You are currently in removal proceedings and are (or were) an unaccompanied alien child (UAC).  A removal proceeding is a hearing in front of an immigration judge to determine whether you can stay in the United States.

You must apply for asylum within one year of the date you last arrived in the United States unless you can demonstrate that:

• Changed circumstances materially impacted your eligibility for asylum, or extraordinary circumstances delayed your filing; and

• You filed for asylum within a reasonable time after those changes or extraordinary circumstances.

How do I apply for affirmative asylum?

To apply for affirmative asylum, you must submit Form I-589, Application for Asylum and for Withholding of Removal to the U.S. Citizen and Immigration Services (USCIS).  Depending on your circumstances, you can file your Form I-589 online or through the mail.  To ensure your form is filed correctly, you can use the USCIS’s Filing Instruction Tool or contact a qualified immigration attorney to assist you.

What happens after I submit my Form I-589?

After you submit your Form I-589, the following will occur:

• Once the USCIS has received your Form I-589, you should receive acknowledgement that your application was received and a notice about when to visit the nearest application support center (ASC) for fingerprinting and background/security checks.
• If you are requesting asylum for your spouse and/or children as well, they will need to accompany you to your ASC appointment.
• After your ASC appointment, USCIS will schedule an interview with your assigned asylum officer at either a USCIS asylum or field office.
• You may bring your attorney, an accredited representative, and an interpreter to your interview. Additionally, if you seek asylum for your spouse and/or children, they must accompany you to your interview.
• After your interview, your asylum officer will determine your asylum eligibility. Typically, in most cases, you will receive this decision via U.S. mail approximately two weeks after your interview. However, under certain circumstances, this decision may be delayed.

During this process, you can check your case status online or have a skilled immigration attorney assist you.

If your asylum request is denied and you do not have a legal immigration status, then the USCIS will issue a Form I-862, Notice to Appear, referring you to an immigration judge with EOIR.

The judge will review your case and make an independent determination on whether your asylum should be granted. If the USCIS does not have jurisdiction over your case, then you will receive a Form I-863, Notice of Referral to Immigration Judge.

The Defensive Process

The defensive process occurs when you request asylum “as a defense” against removal from the United States. In other words, you must be in removal proceedings with the EOIR.

How am I placed in defensive asylum proceedings?

You may be placed into defensive asylum proceedings in one of two ways:

• The USCIS refers you to an immigration judge after you have been determined ineligible for affirmative asylum or
• You were apprehended:
  • In the United States (such as at a port of entry) without legal documents or in violation of your immigration status; or
  • By the U.S. Customs and Border Protection (CBP) trying to enter the United States without legal documents, were placed into the expedited removal process, and were found to have “a credible fear of persecution or torture by an asylum officer.”

What happens once I see an immigration judge?

If you are in defensive asylum proceedings, you will eventually find yourself in front of an immigration judge. The judge will hear arguments from you or your attorney and the United States government, represented by an attorney from the U.S. Immigration and Customs Enforcement (ICE).

After hearing arguments and reviewing your case, the immigration judge will then decide whether you are eligible for asylum. If you are eligible, the judge will grant you asylum. If you are not eligible, the judge will determine if you’re eligible for any other relief from removal outside of asylum, such as adjustment of your immigration status. If no other relief applies, then you will be removed from the United States. However, you or your attorney may appeal the immigration judge’s decision.

An Asylum Merits Interview

The third way to obtain asylum in the United States is through an asylum merits interview. If you are placed in expedited removal proceedings and you want to apply for asylum, you express a fear of returning to your country of origin or nationality, or you express a fear of persecution or torture, you will be referred to USCIS for a credible fear screening.  In other words, you are referred to an asylum officer to determine whether your fear of persecution or torture is reasonable.

If an asylum officer finds that your fear is credible, then the USCIS may either:

• Consider your asylum application while also considering your eligibility for withholding of removal and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). This occurs in a second interview, known as an asylum merits interview. During this interview, the asylum officer will decide whether you are eligible for asylum under the circumstances. If you are found not eligible, you or your attorney may request that an immigration judge review the decision.
• Issue a Notice to Appear before an immigration judge who will then consider your asylum, withholding of removal, and any claims under CAT.

If an immigration judge finds that you do not have a credible fear of persecution or torture, typically there is no appeal or review of that determination. However, you should contact a qualified immigration attorney to see what other options you may have.

Can I Work in the United States While My Asylum Application is Pending?

If your asylum application is pending, you may apply to work legally in the United States if your asylum application has been pending for at least 150 days.

After 150 days, you can file a Form I-765, Application for Employment Authorization.  It will take USCIS at least another 30 days before they issue your EAD. The number of days that an asylum application is pending does not include any delays requested or caused by you. Further, if you file your Form I-765 before the 150-day waiting period has expired, USCIS may reject your application for an EAD.

If you receive your EAD after the 150-day waiting period but before your grant of asylum, and your grant is denied, then your EAD will be terminated at the EAD’s expiration or 60 days after your asylum application’s denial, whichever is longer. However, if your asylum application is denied by an immigration judge, the Board of Immigration Appeals, or a federal court, then your EAD will terminate at the EAD’s expiration date.

If you’ve received a grant of asylum, you may apply for an EAD immediately. You’ll need to provide a copy of your asylum grant notice along with your Form I-765. Your EAD will be valid for up to two years.

It’s important to know that as a legal asylee, an EAD is not necessary to work. However, some asylees prefer to obtain one for convenience or identification. You may want to discuss your options with a qualified immigration attorney.

What Happens After I’m Granted Asylum?

If you are granted asylum, you’ll receive a letter and a completed Form I-94, Arrival Departure Record, showing that you’ve been granted asylum in the United States. This form will include your spouse and any unmarried children (under the age of 21) who you included in your asylum application.

Your grant of asylum permits you to apply for:

• A social security card
• An employment authorization document
• A Green Card (granting you lawful permanent resident status)
• Certain immigration benefits for your spouse and eligible children

An asylum grant does not expire. However, your asylum status may terminate if you:

• No longer have a fear of persecution because of a change in your circumstances;
• Obtained your asylum status through fraud;
• Committed certain crimes, making you ineligible to keep your asylum status; or
• Obtained protection from another country.

Can I Bring My Family to the United States After I’m Granted Asylum?

If you are granted asylum, you may file a Form I-730, Refugee/Asylee Relative Petition with the USCIS to bring your spouse and children to the United States. To be included on this form, your children must be under 21 and unmarried.

Additionally, you must file this form within two years of being granted asylum unless there are reasons to extend this deadline.

Can I Apply for a Green Card After I’m Granted Asylum?

You may apply for a Green Card one year after being granted asylum in the United States. To apply for your Green Card, you’ll file a Form I-485, Application to Register Permanent Residence or to Adjust Status. If you’re applying for your spouse and/or children, you must submit separate Form I-485 packets for each person.