For people who are afraid to leave the U.S. and return to their country of origin because of past or feared persecution there, the one-year deadline on applying for asylum might come as a shock.
While they were busy perhaps getting used to life in the U.S., and considering their options or whether they are eligible for asylum at all, the months were passing. During that time, they might not have realized that, under U.S. immigration law, applicants must submit a request for asylum within one year of their last entry into the United States.
This one-year deadline is true whether the person files affirmatively (on their own) or as a defense in removal (deportation) proceedings.
The one year is in most cases counted to the day. If, however, the anniversary of the person's last entry into the United States was a Saturday, Sunday, or legal holiday, the one year would end on the next business day.
You will have to include evidence of your last U.S. entry date with your asylum application (made on Form I-589, with supporting documents, to U.S. Citizenship and Immigration Services, or USCIS).
Fortunately, there are some exceptions to the one-year filing deadline, which we'll discuss here.
If you can show that events in your life (whether they happened before or after you got to the U.S.) directly affected your ability to file within the one-year required period, and that you filed your application within a reasonable period after the extraordinary circumstance stopped affecting you, you might qualify for an exception.
In addition, you will need to demonstrate that you were not the cause of these extraordinary circumstances.
For instance, “extraordinary circumstances" might include things like your or a family member's severe illness (psychiatric or medical) or disability, your inability to access quality legal information or help, or an issue with your first I-589 filing that caused it to be sent back to you shortly before or after the deadline.
Be sure to submit evidence of the circumstances causing your late application, ideally from credible, independent sources, for example a doctor or employer.
This is actually a subset of the "extraordinary circumstances" exception. If you were in lawful status during at least a part of the one-year period in the U.S., for example on a student or tourist visa or with Temporary Protected Status (TPS), USCIS will likely recognize that you qualify for an exception, and not count your days in lawful status against your one year.
You should, however, file your I-589 as soon as possible after falling out of valid status.
If something changed in your life that affected your decision to seek asylum, you might qualify for an exception and be allowed to file after one year. This might be a change in your personal life or in conditions in the U.S. or in your home country.
The basic idea here is that you weren't afraid to return to your home country until this change happened, whatever it was.
Perhaps you married someone of a religion whose members are persecuted in your country. Perhaps you are undertaking a gender transition, and such persons face discrimination and harassment in your country. Or perhaps your country had a regime change, and you are now in a disfavored group.
Whatever the reason, you will need to file your asylum application within a reasonable time after the changed circumstance took place or after you learned of it.
Be sure to submit evidence of the change causing your late application, such as a marriage certificate and proof of your new spouse's religion, affidavits from people who know of your gender transition along with medical reports, if applicable, or newspaper articles showing your country's regime change.
The basic asylum application process remains the same for late filers, whether you are filing affirmatively (without having been placed in removal proceedings) or before an immigration court judge.
You will, however, need to add documents demonstrating why you deserve an exception, as described above. It's also worth writing a cover letter that fully explains the situation. If you don't feel up to this task, hire an attorney.
