Asylum may be granted to people who are already in the United States and are unable or unwilling to return to their home country 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. If you are granted asylum, you will be allowed to live and work in the United States. You will also be able to apply for permanent resident status one year after you are granted asylum.

Asylum vs Refugee

Asylum status and refugee status are closely related. They differ only in the place where a person asks for the status asylum is asked for in the United States; refugee status is asked for outside of the United States.

Adjustment to Permanent Resident Status 

There is no limit on the number of asylum applications that can be granted. However, there are strict time limits and rules which must be followed. An asylum seeker file for asylum with the first year after arriving in the United States or else it will be automatically rejected. Once asylum has been granted, the asylee must reside in the United States for one year following approval in order to be eligible to apply for adjustment to lawful permanent resident status.

Eligibility

To be eligible for asylum in the United States:

  • Ask for asylum at the port of your entry or file an application within one year of your arrival in the United States

  • You may be able to apply after you have been in the country over one year if your home country’s conditions have changed and those changes affect your eligibility for asylum

Obtaining A Work Permit

Asylum applicants cannot apply for employment authorization at the same time they apply for asylum. Instead, asylum applicants must wait 150 days after the USCIS receives the asylum application before he/she can apply for work authorization.

Defensive vs Affirmative Asylum

When applying for asylum, there are two types of asylum applications available to foreign nationals: the affirmative application and the defensive application. Deciding which application to use depends on whether or not formal removal proceedings have begun. While there are some similarities between the two types of asylum applications, there are distinct differences as well that every foreign national seeking asylum should know.

Similarities Between Affirmative and Defensive Asylum Applications

The overall goal of both the affirmative and the defensive applications is to provide asylum within the United States. Asylum allows a foreign national to escape specific types of persecution should he or she be forced to return to their home land. To qualify, the foreign national must be considered a refugee as defined by the Immigration and Nationality Act, and the persecution must fall under at least one of five protected characteristics.

Generally, in both types of applications, the refugee is already present in the United States and must take steps towards requesting asylum in America. However, this is where the similarities end between the two types of asylum applications.

Affirmative Asylum Applications

To affirmatively apply for asylum, a foreign national must submit Form I-589 to the United States Custom and Immigration Services (USCIS). When applying for affirmative asylum, a foreign national must be present in the United States. This application needs to be filed within a year of the foreign national’s last arrival in America, unless the individual can show changed circumstances that affect his or her eligibility for asylum.

After filing, the foreign national then meets with an asylum officer who determines whether or not the case is approved. If it’s not approved, the case is referred to an immigration judge.

Defensive Asylum Applications

For asylum processing to be defensive, on the other hand, the foreign national must be in removal proceedings in immigration court with the Executive Office for Immigration Review. In this immigration court, the judge will hear arguments from the foreign national (and his or her attorney, if represented) and an attorney from Immigration and Customs Enforcement.

If the immigration judge finds that the individual is eligible for asylum, then an order will be granted. If he or she is found ineligible for asylum, the immigration judge will determine if any other forms of relief from removal are available, including discretionary relief and adjustment of status. If no other relief is available, then the immigration judge will order the foreign national to be removed from the United States.

Finding An Asylum Attorney

It is critical to your asylum case to consult with an attorney before filing your asylum application. Call our office for a consultation about your asylum case today.

Hablamos Español. (512)265-8989