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Asylum in the United States

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Sep 30, 2019)

Who qualifies for asylum?

To qualify for asylum, a foreign-born person must show past persecution or well-founded fear of future persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.” Fear of criminal prosecution or economic concerns would not qualify as ground for asylum.

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Who may be denied asylum?

Certain persons will not be granted asylum even if they otherwise qualify for it:

  • Those who have ordered, incited, assisted, or participated in the persecution of others.
  • Those who are convicted of serious crimes.
  • Those who have committed a serious nonpolitical crime outside of the United States.
  • Those who are a danger to the security of the United States.
  • Those who were firmly settled in a third country before arriving in the United States.

What is the difference between asylum and refugee status?

From the qualification standpoint, there is no essential difference between an asylee and a refugee. If you are outside of the United States, you will seek refugee status. If you are inside the United States, you will file for asylum. Both asylees and refugees must meet the same criteria of fear of persecution. Those criteria are defined in INA § 101(a)(42)(A), which says that you must either have been persecuted or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. However, admission of refugees to the United States is subject to a numerical limit, whereas there is no such limit on granting asylum applications.

When should I file an asylum application?

Asylum applications must be filed at the port of entry or within one year after the entry into the United States.A delay in filing may be excused, if there are changed or extraordinary circumstances during the applicant's stay in the United States.  However, in those cases, you will be well advised to apply promptly upon learning of the changed circumstances.

How can I apply for asylum?

You can apply for asylum even if you entered the United States illegally (without inspection) and even if you went out of status after being admitted into the United States legally.

Applications for asylum are made on Application for Asylum and for Withholding of Removal (I-589). Sufficient evidence showing that you meet refugee standards must be submitted together with the application form. There is no USCIS fee for filing an asylum application. There is also no biometric fee for asylum applicants.

Documenting and gathering evidence to prove past persecution or well-founded fear of future persecution on the basis of “race, religion, nationality, membership in a particular social group, or political opinion” is the most critical part of an asylum application.

What happens after I file an asylum application?

If you are not in removal proceeding, you must file your asylum applications with the USCIS Service Center having jurisdiction over your place of residence. Those services centers are listed on the USCIS web site. The USCIS will schedule an interview with an Asylum Officer within 60 days. The Asylum Officer will decide the application in about 180 days. The Asylum Officer may grant, deny, or refer the application to an immigration judge for a decision.

If you are holding a valid status and the Asylum Officer tentatively decides against your asylum eligibility, the Asylum Officer will give you an opportunity to respond to the officer's concerns.  If you are not holding a valid status and the Asylum Officer denies the application, the officer will place you in removal proceeding.

If you are in removal proceeding, you may file an asylum application with the immigration court and the immigration judge will decide your application.

Can I work while my asylum application is pending?

Yes, but only with prior authorization. Before accepting employment, you must have an Employment Authorization Document (EAD). You may apply for EAD (using Form I-765) no earlier than 150 days after filing your asylum application. The USCIS usually will decide your EAD application within 30 days.  You cannot file Form I-765 together with Form I-589.

Can I travel out of the county while my asylum application is pending?

Leaving the United States while your asylum application is pending will be deemed an abandonment of the application. However, you may request permission to travel by applying for advance parole, using Form I-131.

How can I obtain permanent residence and citizenship?

If the USCIS grants your asylum application, you would be eligible for permanent resident status one year after the USCIS grants your application. While there is no numerical limit on the number of asylum applications granted, there is a limit of 10,000 asylees per year who may adjust their status to that of a permanent resident.

If your asylum application is granted and you become a permanent resident, you would be able to apply for naturalization (citizenship) four (4) years after becoming a permanent resident.

Withholding of Removal

If you do not qualify for asylum, you may still be able to obtain withholding of removal.

Related Topics:

Withholding of Removal

Convention against Torture (CAT) Protection

Temporary Protected Status (TPS)

Removal Proceeding Procedure & Defenses

Removal Proceedings

Grounds for Removal

Undocumented Immigrants

Expedited Removal


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