The United States has an asylum program that grants protection to specific vulnerable foreign individuals who have faced or are facing persecution from their country of origin based on their race, nationality, political opinion, or membership in a particular social group.
However, seeking asylum status in the United States is not a simple process. It is a complicated matter that can result in serious complications, including deportation. Therefore, representation and advice from an experienced lawyer are essential to ensure that your asylum application is done correctly to give you the best chance of winning.
Asylum status is a protection granted by the United States government to asylees, foreign nationals either already in the United States or seeking admission at a point of entry or border. To be considered an asylee, an individual must also have been persecuted or have a well-found fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion from their country of origin.
To determine the appropriate asylum process, it is crucial to determine whether an applicant is eligible for an affirmative or a defensive asylum process.
There are two primary ways for an individual to apply for asylum in the United States: the affirmative asylum process and the defensive asylum process.
An affirmative asylum process applies to an individual who is not in the removal proceeding. This applies to a person who initially used an asylum application with the USCIS or individuals whose application has been referred by the USCIS to the Executive Office for Immigration Review (EOIR).
The affirmative asylum process includes the following steps:
- The applicant must be physically present in the United States.
- The applicant must file Form I-589, Application for Asylum and for Withholding of Removal with the USCIS no later than one year of your arrival in the United States.
- The applicant must attend their biometric (fingerprinting) services appointed upon receipt of the ASC Appointment Notice from the USCIS.
- The applicant must attend the Asylum Interview on the date listed on their Interview Notice. An applicant can attend this interview with their attorney, or an accredited representative, or, if needed, an interpreter.
- During the interview, the Asylum Officer will decide on the applicant’s eligibility whether they are eligible to apply for asylum, or if they meet the definition of a refugee as set by INA, or if they are barred from being granted asylum. The Supervisory Asylum Officer will then review the decision.
- Generally, the applicant will have to return to the asylum office to pick up the decision two weeks after their interview. However, the USCIS will mail their decision if they anticipate that their decision will not be ready within two weeks.
In contrast, a defensive asylum process applies to individuals who are already facing removal proceedings before an immigration judge. These individuals are either determined by an asylum officer to have violated immigration laws or have tried to enter the United States without proper documentation but were found to have a credible fear of persecution if they return to their home country.
Under the defensive asylum process, the applicant’s case only goes through the court system. Therefore, a representation of a qualified immigration lawyer is highly recommended.
An asylee whose asylum application is being processed and pending the decision of the USCIS is allowed to stay in the United States.
Typically, an individual cannot apply for a permit to work, otherwise known as employment authorization (EAD), at the same time they file for asylum. Instead, an individual seeking asylum can file for an employment authorization one year after they filed for asylum. An individual may be eligible to file for EAD while their asylum application is pending if the applicant:
- Entered the United States on or before August 25, 2020;
- Filed for their asylum application on or before August 25, 2020, which is within one year from the date of their last arrival to the United States, or if the applicant is determined to be exempted from the one-year deadline by an asylum officer or immigration judge; or if the applicant is an unaccompanied alien child on the date the asylum application was filed;
- Made themselves available, and appeared on their interview with the USCIS asylum officer or hearing before an immigration judge;
- Appeared for their scheduled biometric services appointments for their asylum or EAD applications;
- Does not fit the rules set under 8 CFR 208.7(a)(1)(iii) to be ineligible for EAD. This rule states that certain criminal offenses or convictions render a pending asylum applicant ineligible for an EAD.
- Does not have any outstanding delay caused by the applicant related to their asylum application when they filed for their initial application for EAD; and
- The final decision has not yet been made on the applicant’s asylum application.
Yes. The USCIS will automatically terminate an applicant’s EAD if the asylum application is denied.
An individual granted asylum status may petition to bring their spouse and children to the United States by filing a Form I-730 Refugee/Asylee Relative Petition.
However, this petition must be filed within two years of being granted asylum unless there is a proven humanitarian reason.
Yes, an individual may apply for permanent residency (green card) after one year of being granted asylum by submitting a Form I-485 Application to Register Permanent Residence or Adjust Status.
As you can tell from the information discussed above, obtaining asylum status is tedious and complicated. Therefore, having a competent immigration attorney to guide you through the process is beneficial to your case.
If you are seeking asylum or would like to determine if you are eligible for asylum, please call our office at (225) 963-9638, or you can go to our website at www.messerfirm.com to arrange to speak with an experienced immigration professional about your case