Obtaining Asylum in the United States

The two ways of obtaining asylum in the United States are through the affirmative process and defensive process.

Affirmative Asylum Processing With USCIS

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

You must apply for asylum within one year of the date of their last arrival in the United States, unless you can show:

Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filingYou filed within a reasonable amount of time given those circumstances.

You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS. See Form I 589, Application for Asylum and for Withholding of Removal for instructions on how to file for asylum,.

If your case is not approved and you do not have a legal immigration status, we will issue a Form I-862, Notice to Appear, and forward (or refer) your case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. If we do not have jurisdiction over your case, the Asylum Office will issue an I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing. See ‘Defensive Asylum Processing With EOIR’ below if this situation applies to you.

Affirmative asylum applicants are rarely
detained by U.S. Immigration and Customs Enforcement (ICE). You may live in the United States while your application is pending before USCIS. If you are found ineligible, you can remain in the United States while your application is pending with the Immigration Judge. Most asylum applicants are not authorized to work.

The Affirmative Asylum Process

The following steps explain how you apply for asylum in the United States through the affirmative asylum process. The information in this section will not apply to you if you are seeking asylum through the defensive asylum process, meaning you are in removal proceedings before an immigration judge.

STEP ONE: Arrive in the U.S.

To apply for asylum in the U.S., you must be physically present in the U.S. or seeking entry into the U.S. at a port of entry.

STEP TWO: Apply for Asylum

To apply for asylum, you should file Form I-589, Application for Asylum and for Withholding of Removal, with USCIS within one year of your last arrival in the United States (unless you qualify for an exception to the one-year filing deadline).

Do not submit a completed fingerprint card (FD-258) or fingerprint fee with your application. Your application will be accepted without the fingerprint card attached.

More information about how to file your application can be found in theinstructions for Form I-589.

For information on asylum eligibility, see the Asylum Eligibility and Applications Web page on USCIS.gov.

Bars to Applying for Asylum

You may not be eligible to apply for asylum if you:

Did not follow the one-year filing deadline for Form I-589, Application for Asylum and for Withholding of Removal. The one-year deadline is calculated from the date of your last arrival in the U.S. or April 1, 1997, whichever is later;Had a previous asylum application denied by an immigration judge or the Board of Immigration Appeals; orCan be removed to a safe third country under a two-party or multi-party agreement between the United States and other countries.

There are exceptions to these bars for “changed circumstances” or “extraordinary circumstances.”

Both are defined in 8 CFR 208.4. For more information on the bars and the exceptions, see our Asylum Bars Web page.

Once USCIS has received the completed application, you will receive two notices:

1. Acknowledgment of receipt of your application, and

2. Notice to visit your nearest application support center (ASC) for fingerprinting.

For more information on locating an ASC, see our USCIS Service and Office Locator Web page.

STEP THREE: Fingerprinting and Background/Security Checks

You should read the ASC Appointment Notice and take it with you to your fingerprinting appointment at the ASC. You do not need to pay a fingerprinting fee as an asylum applicant.

If you are also requesting asylum status for your spouse and children and they are with you in the U.S., they will need to go with you to your ASC appointment.

More information is available on our Fingerprints Web page.

STEP FOUR: Receive and Interview Notice

Depending on where you live, we will schedule you for an interview with an asylum officer either at one of the eight asylum offices or at a USCIS field office. For more information about USCIS field and asylum offices visit ourFind A USCIS Office Web page. Your interview notice will tell you the date, location, and time of your asylum interview.

Please Note: Delay in Scheduling Your Asylum Interview

We are committed to processing and adjudicating every application we receive in a timely manner; however, because of the diversion of an increasing number of asylum officers to conduct protection screening interviews for persons arriving at the border, there could be a delay in scheduling your interview.

On December 26th, 2014, the USCIS Asylum Division began prioritizing asylum applications for interview scheduling as follows:

First, applications that were scheduled for an interview, but the applicant requested a new interview date;Second, applications filed by children; andThird, all other pending affirmative asylum applications will be scheduled for interviews in the order they were received, with oldest cases scheduled first.

If your asylum application is currently pending interview scheduling, we are unable to predict how long the process will take at this time. Please see USCIS Processing of Asylum Cases for more information.

Asylum Office Directors have the discretion to consider applicants’ requests for urgent interview scheduling outside of the above prioritization categories on a case-by-case basis.  Please submit any urgent interview scheduling requests in writing to the asylum office with jurisdiction over your case.  Go to the USCIS Service and Office Locator page for contact information.

STEP FIVEInterview

You may bring an attorney or accredited representative to the interview. You must also bring your spouse and any children seeking derivative asylum benefits to the interview.

If you cannot proceed with the interview in English you must bring an interpreter.

The interview will generally last about an hour, although the time may vary depending on the case. You may also bring witnesses to testify on your behalf.

For more information about your asylum interview, see our Web page onPreparing for Your Asylum Interview.

STEP SIXAsylum Officer Makes Determination on Eligibility and Supervisory Asylum Officer Reviews the Decision

You must meet the definition of a refugee in order to be eligible for asylum.

The asylum officer will determine whether you:

Are eligible to apply for asylum,Meet the definition of a refugee in section 101(a)(42)(A) of the INA, andAre barred from being granted asylum under section 208(b)(2) of the INA.

A supervisory asylum officer reviews the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, the supervisory asylum officer may refer the decision to asylum division staff at USCIS headquarters for additional review.

STEP SEVEN: Receive Decision

In most cases, you will return to the asylum office to pick up the decision two weeks after the asylum officer interviewed you.

Longer processing times may be required if you:

Are currently in valid immigration status,Were interviewed at a USCIS field office,Have pending security checks, orHave a case that is being reviewed by asylum division staff at USCIS headquarters.

We will normally mail your decision to you in these situations.

Defensive Asylum Processing with EOIR

A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individuals are generally placed into defensive asylum processing in one of two ways:·

They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, orThey are placed in removal proceedings because they:

Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status,
ORWere caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer. SeeQuestions & Answers: Credible Fear Screenings for more information on the Credible Fear Process.

Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties:

The individual (and his or her attorney, if represented)·The U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE)

The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal.  If found ineligible for other forms of relief, the I

mmigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.

Key Differences Between “Affirmative” and “Defensive” asylum –

Affirmative asylum-
Individual has not been placed in removal proceedings before an Immigration Judge   

Individual affirmatively submits Form I-589 to USCIS  

Individual appears before a USCIS Asylum Officer for a non-adversarial interview.  

Individual must provide a qualified interpreter for the asylum interview. 

Defensive asylum- 
Individual has been placed in removal proceedings before an Immigration Judge.

Individual Is placed in removal proceedings by an Asylum Officer;

Is placed in removal proceedings for immigration violations; or

Tried to enter the United States without proper documents and was found to have a credible fear of persecution or torture

If the individual was referred by USCIS, the asylum application already filed will carry over to the immigration judge. If the individual did not yet submit an asylum application he or she will submit it to the Immigration Judge.

Individual appears before an Immigration Judge with the Executive Office for Immigration Review for an adversarial, court-like hearing.

The Immigration Court provides a qualified interpreter for the asylum hearing and all other court proceedings.

Advertisements
%d bloggers like this: