Who Is Eligible to Apply for Asylum?
Asylum may be granted to people who are arriving in or already physically present in the United States. To apply for asylum in the United States, you may ask for asylum at a port-of-entry (airport, seaport, or border crossing), or file Form I-589, Application for Asylum and for Withholding of Removal, at the appropriate Service Center within one year of your arrival in the United States. You may apply for asylum regardless of your immigration status, whether you are in the United States legally or illegally.
You must apply for asylum within one year of your last arrival in the United States, but you may apply for asylum later than one year if there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. These may include certain changes in the conditions in your country, certain changes in your own circumstances, and certain other events.
You will be barred from applying for asylum if you previously applied for asylum and were denied by the Immigration Judge or Board of Immigration Appeals, unless you demonstrate that there are changed circumstances which materially affect your eligibility for asylum. You will also be barred if you could be removed to a safe third country pursuant to a bilateral or multilateral agreement.
You can’t apply for asylum in the United States if you passed through a safe third country. Canada and the U.S signed a safe third-party agreement in 2004. The agreement declares that both countries are safe for refugees. Accordingly, it compels applicants to seek refugee protection in the first safe country they arrive. This agreement does not apply to Canadian citizens and stateless persons.
The government is also trying to apply the safe third country rule to all asylum applicants crossing the Southern border. In the Asylum Eligibility and Procedural Modifications, DHS bars applicants from applying for asylum if they crossed the southern border without applying for a refugee protection in a third country. The Supreme Court in a brief order allowed the current administration to continue applying this rule until its legality is decided in lower courts.
How Do I Apply for Asylum?
To apply for asylum, you will need to complete Form I-589 and follow the instructions carefully.
Can I Apply for Asylum if I Am Illegally in the U.S.?
Yes, you may apply even if you are here illegally. You may apply for asylum regardless of your immigration status as long as you file your application within one year of your last arrival or demonstrate that you are eligible for an exception to that rule based on changed circumstances or extraordinary circumstances, and that you filed for asylum within a reasonable amount of time given those circumstances.
Can I Apply for Asylum Even if I Was Convicted of a Crime?
Yes, you may apply. However, you may be barred from being granted asylum depending on the crime. You must disclose any criminal history on your Form I-589 and at your asylum interview. Failure to disclose such information may result in your asylum claim being referred to the Immigration Court, and possible fines or imprisonment for committing perjury.
What About My Spouse and Children?
You must list your spouse and all your children on your Form I-589 regardless of their age, marital status, whether they are in the United States, or whether or not they are included in your application or filing a separate asylum application.
You may ask to have included in your asylum decision your spouse and/or any children who are under the age of 21 and unmarried, if they are in the United States. This means that, if you are granted asylum, they will also be granted asylum status and will be allowed to remain in the United States incident to your asylum status. However, if you are referred to the Immigration Court, they will also be referred to the court for removal proceedings. You should refer to the instructions in Form I-589 for information on the documents you will be required to submit establishing your family relationships, such as marriage certificates and birth certificates.
Children who are married and/or children who are 21 years of age or older at the time you file your asylum application must file separately for asylum by submitting their own asylum applications (Form I-589).
Once you are granted asylum, you may petition to bring your spouse and/or children to the United States or to allow those already here, who were not included in your asylum decision, to remain incident to your asylum status.
What is the Fee?
There is no fee to apply for asylum.
How Does the Asylum Officer or Immigration Judge Determine if I Am Eligible for Asylum?
The Asylum Officer or Immigration Judge will determine if you are eligible by evaluating whether you meet the definition of a refugee. A refugee is someone who is unable or unwilling to return to and avail himself or herself of the protection of his or her home country or, if stateless, country of last habitual residence because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The determination of whether you meet the definition of a refugee will be based on information you provide on your application and during an interview with an Asylum Officer or at a hearing before an Immigration Judge.
The Asylum Officer or Immigration Judge will also consider whether any bars apply. You will be barred from being granted asylum if you:
You will also be barred from being granted asylum if you are inadmissible to the U.S. or removable for certain reasons.
What Should I Bring with Me to the Asylum Interview?
You have the right to bring an attorney or representative. You must bring an interpreter if you are not fluent in English. If your spouse and/or children who were under 21 at the time you filed your application are included in your asylum application as dependents, they must also appear for the interview and bring any identity or travel documents they have in their possession. Although you are required to list all of your family members on your application, you only need to bring those to the interview that will be included as dependents in the asylum decision. You should also bring the following if available:
What Will Happen at My Asylum Interview?
The interview will generally last at least an hour, although the time may vary depending on the case. You will be asked to take an oath promising to tell the truth during the interview. The Asylum Officer will verify your identity, ask you basic biographical questions, and ask you about the reasons you are applying for asylum. It is very important that you tell the Asylum Officer your experiences so that the Asylum Officer can determine whether you qualify as a refugee.
The Asylum Officer will also ask you questions to determine if any bars apply to being granted asylum. Everything you say to the Asylum Officer will be confidential. You and your attorney or representative, if any, will have time at the end of the interview to make a statement or add any additional information. A decision will not be made at the asylum interview.
How Will the Asylum Officer Make the Decision Whether to Grant Me Asylum?
The Asylum Officer will evaluate your testimony, the information you provide on your application, and any supplementary materials you submit to determine if you are a refugee and whether any mandatory bars apply. The Asylum Officer will consider country condition information from reliable sources and will consider the relevant law. The Asylum Officer will also evaluate the credibility of your claim.
When Will I Be Notified About the Decision on My Asylum Claim?
In most cases, you will return to the asylum office where your interview was held two weeks after the interview to pick up your decision. However, there may be longer processing times if you were interviewed at a district office, are currently in valid status, or if your case will be reviewed by Asylum Division Headquarters staff. You will generally receive the decision by mail if any of these circumstances occur.
Will I Be Able to Petition to Bring My Family to the U.S.?
If you are granted asylum, you may request derivative asylum status for any spouse or child (unmarried and under 21 years of age as of the date you filed the asylum application was pending on or after August 6, 2002) who was not included in your asylum claim and with whom you have a qualifying relationship. You must submit a Form I-730, Refugee and Asylee Relative Petition, to the Nebraska Service Center, P.O. Box 87730, Lincoln, NE 68501-7730. The Form I-730 must be filed for each qualifying family member within 2 years of the date you were granted asylum status, unless USCIS determines that this time period should be extended for humanitarian reasons.
When Can I Apply to Become a Lawful Permanent Resident?
You may apply for lawful permanent resident status after you have been physically present in the United States for a period of one year after the date you were granted asylum status. To apply for lawful permanent resident status, you must submit a separate Form I-485, Application to Register Permanent Residence or Adjust Status, for yourself and each qualifying family member to the Nebraska Service Center, P.O. Box 87485, Lincoln, Nebraska, 68501-7485.
Will I Get a Work Permit?
Asylum applicants cannot apply for employment authorization at the same time they apply for asylum. You will be authorized to work in the United States if you are granted asylum and as long as you remain in asylum status. You are also eligible to apply for employment authorization if you are given a recommended approval or conditional grant of asylum. You can also apply for work authorization before a decision is made on your claim if 150 days has passed since you filed your complete application with the Service Center and no decision has been made on your application. USCIS has 30 days to either grant or deny your request for employment. The application to apply for an Employment Authorization Document (EAD) is the Form I-765.
Can I Travel Outside the U.S.?
If you are applying for asylum and want to travel outside the United States, you must receive advance permission before you leave the United States in order to return to the United States. This advance permission is called Advance Parole. If you do not apply for Advance Parole before you leave the country, you will be presumed to have abandoned your application with USCIS and you may not be permitted to return to the United States. If you obtain advance parole and return to your country of feared persecution, you will be presumed to have abandoned your asylum request, unless you can show compelling reasons for the return. If your application for asylum is approved, you may apply for a Refugee Travel Document. This document will allow you to travel abroad and return to the United States.
Get Professional Legal Help With Your Asylum Claim
If you or someone you love is hoping to be granted asylum, you'll first need to understand eligibility criteria. Immigration laws can be difficult to understand it is always important to understand the current law and also have a legal advocate on your side. Get a head start today and contact an immigration law attorney near you.
