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An Overview of Asylum

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If you were persecuted in your home country or fear persecution if you go back, you can apply for asylum in the U.S. A grant of asylum will allow you to stay and work in the U.S. legally, and give you a path to become a lawful permanent resident (LPR or green card holder).

U.S. immigration law does not define “persecution.” It could include being jailed, beaten, and/or tortured based on one of the reasons below. But immigration and federal judges have not settled on a single definition. This is an example of how complex asylum is, and why it is a good idea to talk to an immigration lawyer if you would like to apply for asylum. Use the Guide to Legal Help to find immigration lawyers and legal services in your area.

Eligibility

You can apply for asylum regardless of your country of origin and current immigration status. You can ask for asylum once you are in the U.S. or while trying to enter the U.S. at a port of entry.

In order to be granted asylum, you must show you suffered past persecution or fear future persecution by government agents or by nongovernment agents who the government is unable or unwilling to control. The persecution must be based on one of the following:

  • Race

  • Religion

  • Nationality

  • Political opinion (this could be an actual political opinion you have or one the persecutors believe you have)

  • Membership in a certain social group (sharing a common characteristic that is such a part of your individual identity that you cannot or should not change it, like being gay or being a member of a specific tribe)

Bars from Applying for Asylum

There are certain reasons (bars) why a noncitizen cannot apply for asylum. The first is a filing deadline. You must file your asylum application within one year after arriving in the U.S.

There are exceptions to the one-year filing deadline. If you can show circumstances changed (in the U.S., your home country, or your personal life) or there are extraordinary circumstances that should be considered, you may be able to file after the deadline. Examples of extraordinary circumstances are:

  • You suffered a serious mental or physical illness during part of the one-year filing period;

  • A member of your immediate family or your legal guardian was seriously ill or died during part of the one-year filing period;

  • You were legally disabled or incompetent during the one-year filing period; or

  • Your lawyer’s ineffective assistance caused the delay in filing.

Along with the filing deadline, you might not be allowed to apply for asylum if you previously applied for it and were denied. You also may be barred from applying for asylum if you passed through another safe country on your way to the U.S. where you could have applied for asylum.

Bars from a Grant of Asylum

Even if you are able to apply for asylum, there may be reasons why you will not get it. If any of the following apply, you will not be given asylum:

  • You participated or helped in the persecution of others

  • You pose a security threat to the U.S.

  • You were firmly resettled in another country before arriving in the U.S.

  • You engaged in, encouraged, or supported terrorist activities

  • You are inadmissible (not allowed to enter the U.S.)

  • You were convicted of a “particularly serious crime” (PSC)

  • You committed a “serious nonpolitical crime” (SNC)

You might not be allowed to enter the U.S. if the government believes you are a threat to national security or a public health concern. You also might not be allowed to enter if you have been deported before. To learn more about these and other reasons why you might not be allowed to enter the U.S., read Inadmissibility, Deportation, and Bars to Reentry.

Most aggravated felonies, like drug offenses and violent crimes, are considered PSCs. Being charged with a PSC is not enough to bar you from getting asylum; you must be convicted of the crime.

An SNC is less serious than a PSC. You do not have to have been convicted of the crime for the bar to apply. However, there must be probable cause (a reasonable belief based on facts) that you committed the crime in order for the bar to apply.

When there are criminal issues in immigration cases, it is very important to talk to an experienced immigration lawyer. Not all criminal defense lawyers know about immigration law. If you or someone you know has an issue involving both criminal and immigration law, you should talk to an immigration lawyer. Use the Guide to Legal Help to find immigration lawyers and legal services in your area.

To learn more about potential bars to asylum, review Asylum Bars on the U.S. Citizenship and Immigration Services (USCIS) website. You may also want to speak with an immigration lawyer. Use the Guide to Legal Help to find immigration lawyers in your area.

Applying for Asylum

There are two ways to ask for asylum in the U.S. – an affirmative process and a defensive process. Both processes are discretionary, meaning an immigration judge (IJ) or asylum officer (AO) does not have to grant you asylum, even if you are eligible for it.

You must show you are eligible for asylum, and you must also show your case merits it. To learn more about applying for asylum and the supporting documents you may need, read Finding Country Conditions Evidence for Asylum. IJs and AOs are supposed to review all factors in your case. However, the danger of persecution should outweigh most factors not in your favor, such as using a smuggler to get to the U.S.

The Affirmative Process

To get asylum through the affirmative process, you need to file Form I-589, Application for Asylum and Withholding of Removal with USCIS. Although USCIS offers instructions, the affirmative asylum process is complex. You should strongly consider speaking with an immigration lawyer before you file anything. Use the Guide to Legal Help to find immigration lawyers and legal services in your area.

There is no filing fee for your application. You must file it within one year of arriving in the U.S. The filing deadline might not apply if you can show changed circumstances materially affect your eligibility for asylum or extraordinary circumstances caused the delay in meeting the deadline. To learn more about these exceptions, read the section “Bars from Applying for Asylum” above.

Once USCIS gets your application, it will send you an acknowledgement of receipt. Then it will send you a notice to get your fingerprints taken at an application support center (ASC). Take the notice with you to the ASC to get fingerprinted. You do not have to pay a fee to get fingerprinted.

Next, you will get a notice of an interview with an asylum officer. Depending on where you live, your interview can be at one of eight asylum offices or at a USCIS field office. For example, if you live in Michigan, your interview will be held at the Chicago Asylum Office. You must attend the interview at the place and time on the notice. It is possible to request a new interview date. However, doing so could affect other parts of your case and immigration status. If you would like to request a different interview date, you should consider speaking with an immigration lawyer first. Use the Guide to Legal Help to find lawyers and legal services in your area.

Interviews with asylum officers typically last about an hour. During your interview and through your application you need to establish you were persecuted or fear persecution based on one of the reasons listed above. The interview will be non-adversarial. This means there won’t be anyone from the government trying to prove you are not eligible for asylum. You are able to have a lawyer with you during the interview, but their role will be very limited because the main purpose is to get information from you.

If you do not feel comfortable doing the interview in English, you will need to bring an interpreter with you; one will not be provided. The interpreter must be fluent in English and be at least 18 years old. If you are hearing-impaired, USCIS can provide a sign language interpreter.

After the interview, the officer will make a decision. A supervisory asylum officer will review the interviewing officer’s decision. Sometimes the supervisory asylum officer refers cases to asylum division staff at USCIS headquarters for further review.

Processing times vary, but you should receive a decision in the mail. If your application is approved, you are entitled to certain benefits and will have new responsibilities as an asylee. Here are some examples of benefits as an asylee:

  • Being able to work even if you never had an Employment Authorization Document

  • Asking for derivative asylum status for your spouse and unmarried children under 21 listed on your asylum application

  • Applying to be an LPR after you have been in the U.S. for one year as an asylee

Your responsibilities include reporting to USCIS any changes in address if you move or any international travel plans you may have. If you are a male between 18 and 26, you must also register with the Selective Service.

To learn more, read Benefits and Responsibilities of Asylees on the USCIS website.

If your application is denied and you are out of status (not lawfully present in the U.S.), your case will be referred to an IJ in immigration court and you will get a Notice to Appear (NTA). The NTA begins the deportation process. If this happens, your asylum case is now in the defensive process.

The Defensive Process

The defensive asylum process begins when you ask for asylum as a defense against being deported from the U.S. This can happen if you are referred to an IJ after USCIS denies your affirmative asylum application, or if you are already in deportation proceedings in immigration court.

During the proceedings, you (or your lawyer) need to establish you were persecuted or fear persecution based on one of the reasons listed above. A lawyer for U.S. Immigration and Customs Enforcement (ICE) will try to prove you are not eligible for asylum and you should be deported. To learn more about what to expect during deportation proceedings, read Detention and Deportation.

The IJ will make a decision based on the evidence presented during your hearings. If you had an asylum interview and were referred to immigration court, the IJ will not consider the asylum officer’s decision when deciding your case.

Options Other Than Asylum

If you are not eligible for asylum or your request was denied, you may be eligible for other forms of relief from deportation. It is important to discuss your case with an immigration lawyer who can go over your options. Use Guide to Legal Help to find immigration lawyers and legal services in your area.

Some options other than asylum are covered in An Overview of Withholding of Removal and Visas Available to Victims of Crimes.