Overview: The Asylum Process

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Asylum is a protection grantable to foreign nationals already in the United States or arriving at the border who meet the definition of a refugee, which is someone who is outside the United States, is of special humanitarian concern to the U.S, can prove they were persecuted or fear persecution based on race, religion, nationality, political views, or belonging to a certain social group, isn’t completely settled in another country, and is admissible to the U.S. For more information on the U.S. refugee process, visit The Refugee Process.

There are 3 ways of obtaining asylum in the United States:

The affirmative process.
An Asylum Merits Interview after a positive credible fear determination; or
The defensive process.

Affirmative Asylum

Affirmative Asylum Processing with USCIS

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

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

Very important changed circumstances that have great consequences that affect your eligibility for asylum
Extraordinary circumstances relating to the delay in filing; and
That you 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.

If your case is not approved and you do not have a legal immigration status, USCIS will issue a Notice to Appear (NTA) and refer your case to an immigration judge with the Department of Justice’s Executive Office for Immigration Review (EOIR). The immigration judge conducts a new hearing of the case. The judge will issue a decision that is independent of the decision made by USCIS. In certain circumstances, if USCIS does not have jurisdiction over your case, the asylum office will issue a Notice of Referral to Immigration Judge for an asylum-only hearing.

You may live in the United States while your Form I-589 is pending before USCIS. If you are found ineligible, you can remain in the United States while your Form I-589 is pending with the immigration judge. Asylum applicants are not authorized to work unless you meet certain requirements.

Affirmative Asylum Interview Scheduling

Since January 29, 2018, priority is given to the most recent affirmative asylum applications in order to give more opportunities to those who are in deportation proceedings. USCIS schedules an asylum interview in order of priority:

First priority: Applications that have been scheduled for an interview. However, the interview was rescheduled by order of USCIS or the applicant.
Second priority: Applications have been on hold for 21 days or less from the date they were submitted.
Third priority: The remaining affirmative asylum applications will be scheduled for an interview. It will be scheduled from the most recent requests to the oldest.

The Asylum Merits Interview

If you are placed in expedited removal proceedings and indicate an intention to apply for asylum, express a fear of persecution or torture, or express a fear of return to your country, you will be referred to USCIS for a credible fear screening.

A USCIS asylum officer will conduct a credible fear screening interview to determine whether you have a credible fear of persecution or torture.

If an asylum officer finds that you have a credible fear of persecution or torture, USCIS may either:

Retain and consider your application for asylum and also consider your eligibility for withholding of removal and protection under the Convention Against Torture (CAT) in a second interview. This is known as an Asylum Merits Interview. An asylum officer will decide whether you are eligible for asylum. If necessary, an asylum officer will also determine whether you demonstrated eligibility for withholding of removal or protection under CAT based on the record before USCIS; or
Issue a Notice to Appear before an immigration judge for consideration of your asylum, withholding of removal, and CAT protection claims. When you file the Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court, it places you in the “defensive” asylum process.

Defensive Asylum

Defensive Asylum Processing with the EOIR

A defensive application for asylum occurs when you request asylum as a defense against removal from the United States. 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, or
They are placed in removal proceedings because they:
- Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
- Were apprehended 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.

Immigration judges hear defensive asylum cases in courtroom-like proceedings, as necessary. After hearing the arguments from both parties, the immigration judge then decides if you are eligible for asylum. If the immigration judge finds you eligible, they will grant asylum. If the immigration judge finds you ineligible for asylum, they will determine whether you are eligible for any other forms of relief from removal. If the immigration judge finds you ineligible for other forms of relief, they will order you to be removed from the United States. Either party can appeal the immigration judge’s decision.

Withholding Of Removal

If you do not qualify for asylum, you may be eligible for withholding of removal. The deferment does not give you a Green Card, but you will be able to legally stay and work in the country. To apply for this protection, you must show that you will suffer future persecution if you return to your country of origin or that your life is in danger. As long as it is for the same reasons to be eligible for asylum.

Asylum Decisions

USCIS will make a decision after you file the asylum application. These include:

Asylum Granted

You receive such a decision when USCIS determines that you are eligible for asylum. You will receive a letter and a copy of Form I-94 stating that you have been granted asylum in the US.

Your immediate family members (spouse and unmarried children under 21 years of age) will be included in the asylum process in the U.S. if:

You prove that you have a relationship with them.
They are present in the U.S.
They are included in the asylum request.

You and your immediate family members who have been approved for asylum will get all of your benefits. Although asylum in the US does not expire, USCIS can cancel your asylum status if you:

Obtain protection in another country.
Obtain asylum approval through fraudulent actions.
No longer fear being persecuted in your country of origin.
Commit crimes that violate immigration law or criminal law in the United States.

Notice Of Intent to Deny

In some circumstances, you may receive a Notice of Intent to Deny (NOID) if you have legal status in the US but are not eligible for asylum. The notice details the reasons why you have not been eligible to apply for asylum.

However, you will have 16 days to explain (in writing) why you should be granted asylum status. If you do not respond within the established 16 days, your asylum process and application in the USA will be rejected.

Denial

You will receive a denial letter if:

You did not respond to the NOID within 16 days.
The new information you submit in response to the NOID does not overcome the reasons presented by USCIS.

Appealling Immigration Judge Decisions

You can appeal the decision of the immigration judge to a higher court called the Board of Immigration Appeals (BIA). You must file Form EOIR-26, a Notice of Appeal, within 30 days of the date of your decision. An immigration attorney or accredited representative can help you with this.

Permission to Work in the United States

To apply for employment authorization, you must file a Form I-765, Application for Employment Authorization.

Based on a Pending Asylum Application

To apply for an Employment Authorization Document (EAD) based on your pending asylum application under the (c)(8) category, you may file a Form I-765 150 days after you file your asylum application. You are not eligible to receive an EAD until your asylum application has been pending for at least another 30 days, for a total of 180 days, commonly referred to as the 180-Day Asylum EAD Clock.

Delays that you request or cause while your asylum application is pending with an asylum office or with the Executive Office for Immigration Review do not count toward the 150-day waiting period or the 180-day eligibility period.

Delays you may request, or cause may include:

Asking to transfer a case to a new asylum office or interview location, including when the transfer is based on your change of address.
Asking to reschedule an interview for a later date.
Failing to appear at interview or biometrics appointment.
Failing to provide a competent interpreter at an interview (if required).
Asking to provide additional evidence at or after an interview.
Submitting large volumes of evidence immediately before an interview that requires a reschedule; or
Failing to receive and acknowledge an asylum decision in person (if required).

If you are required to receive and acknowledge your asylum decision at an asylum office but you fail to appear, your 180-Day Asylum EAD Clock will stop, and you may be ineligible to receive employment authorization. If your case has been referred to an Immigration Court, your 180-Day Asylum EAD Clock will not start again until your first hearing with an immigration judge.

If you fail to appear for a scheduled asylum interview without good cause or fail without good cause to provide a competent interpreter if you are required to do so, USCIS may refer your Form I-589 to an immigration judge, and you will be ineligible for employment authorization based on your pending Form I-589.

If USCIS approves your application for employment authorization based on your pending asylum application, your EAD will be valid for up to 2 years.

Next Steps After Being Granted Asylum

Get help with resettlement services.
Apply for a social security card.
Get a driver’s license or state identification card.
Find a job. You can work without having to apply for a work permit or EAD.
Travel outside the U.S. You must first apply for a travel permit. File Form I-131, Application for Travel Document with USCIS before your trip. A travel document is valid for one year.
Ask to bring your spouse and unmarried children under 21 years to the U.S.
Apply for a green card one year after receiving asylum.
Apply for citizenship 4 years after receiving lawful permanent residence (green card).

Disclaimer: Immigration laws and policies can change, affecting the availability and requirements of the immigration processes mentioned above. Always seek legal advice or consult official U.S. government sources to understand the latest regulations and options available to individuals.