Asylum - Immigration Series part III
Every year thousands of people come to the U.S. seeking Asylum. Who is eligible for Asylum and how can one apply? We’ll be answering those and other frequently asked questions for you below.
Who is eligible for Asylum?
Foreign nationals who are unable or unwilling to return to their home country because of persecution or fear thereof due to any of the following reasons:
Membership in a particular social group
You are able to apply for Asylum if you have been residing in the U.S. for less than one year (exceptions of this rule will be explained later) and it doesn’t matter how you entered the US. You may also ask for Asylum at the port of entry (airport, seaport, border crossing, etc.)
You can mention your spouse and children (if they are unmarried and under 21) in your application to seek Asylum on their behalf as well.
How do I apply and how long does it take?
You must be physically present in the U.S. in order to apply for Asylum. Once you are in the U.S., you need to complete Form I-589, Application for Asylum and for Withholding of Removal within one year of your last arrival to the United States. Make sure to keep a copy of every document you have submitted and send your application by certified mail (such as UPS or FedEx) so you get a tracking number to prove your application was sent in time. Alongside the I-589 form, you will need to submit the following:
A declaration (detailed statement on why you are applying for Asylum)
Any corroborating documents or evidence you may have (examples: medical reports, letters from witnesses, police reports)
Once the USCIS receives your paperwork, they will send you a notice to confirm the receipt of your documentation and a further notice asking you to visit the nearest application support center for fingerprinting.
It is very hard to say how long the process takes. It can take any time between 45 days to several years to get scheduled for an interview. While you wait, however, you are able to apply for an EAD (work authorization card) after some time has passed. You cannot apply for an EAD right away, but once 150 days have passed since you filed your complete Asylum application, excluding any delays caused by you (such as a request to reschedule your interview) and no decision has been made on your application, you may apply for a work authorization card.
To apply for the EAD you need to fill out Form I-765, Application for Employment Authorization. There is no fee for an applicant waiting for Asylum to apply for the EAD, nor if you already hold Asylum status in the U.S. Once you hold your Asylum status, you are eligible to work right away.
The Asylum Status can be held indefinitely but the work authorization will need to be renewed every year. However, it is highly recommended to apply for lawful permanent residency as soon as you are able. If you remain in ‘Asylee’ Status after your Asylum is approved, and do not become a lawful permanent resident, if circumstances change such that you no longer fear nor would be likely to be persecuted on your return home, the Government may take your ‘Asylee’ status away from you.
The interview and what comes after
Once you have been scheduled for an application interview, make sure to bring every single document you have submitted to the USCIS while filing your documentation. If you do not speak English, you are responsible for bringing an interpreter to the interview and if you are working with an attorney on this case (which is highly recommended), you may also bring him/her to the interview. You must further bring your spouse and any children seeking derivative Asylum benefits to the interview.
If you get approved, you may be asked to return back to the Asylum office to pick up your decision when it is ready after the Interview, or you may receive the decision by mail afterwards. The decision may come right after you Interview, or it may come months or even years later.
Of course, the applicant will not always be granted Asylum status. There are a few different outcomes to consider
1. If you get denied while you are holding a valid immigration status such as student or tourist at the time of the decision, you may be issued “Notice of Intent to Deny” which enables you to submit further evidence to the Asylum office about why you should win the case. Unfortunately, most of the time responses to the Notice of Intent to Deny are unsuccessful in changing the decision made by the Asylum office. You may still stay in the United States until your authorized period of stay under the visa you are holding expires. 2. If do not have any kind of visa and are in the United States undocumented, or have overstayed your visa, you will be placed in deportation proceedings before the Immigration Court. You will have a second chance to present your case to an Immigration Judge, who will hear testimonies from you, family, friends, or maybe even an experts if you want them to. They will review your evidence one more time and decide whether or not you will be permitted to remain in the U.S. You will essentially have a ‘Trial’ in front of the Judge.
After one year of holding Asylum status, you are eligible to apply for a Green Card. To apply, file a Form I-485, Application to Register Permanent Residence or to Adjust Status. You must submit a separate I-485 application packet for yourself and, if applicable, for each family member who received derivative Asylum based on your case.
Frequently Asked Questions
What is persecution?
What is known as persecution is mistreatment by the government directly or by individuals whom the government can or will not control. It is more serious than simple discrimination or harassment. Many kinds of mistreatment may rise to a level of persecution, however, especially if the abuse happened over a long period of time and frequency.
Can I apply for asylum for reasons of LGBTQ or being HIV-positive?
Yes, you can, but only if you have suffered past persecution, or fear future persecution, by the Government or people whom the Government is unable and unwilling to control in your home country and the persecution has a strong nexus to these reasons. The application, in this case, may be filed under the “political opinion” category, or ‘membership in a particular social group’ category. Sexual orientation alone is not a protected ground under the asylum laws in the United States.
I am a minor, can I still apply for asylum?
Yes. There are special guidelines the Asylum officers follow in these cases to ensure child-sensitive procedures.
Can I obtain asylum if I have not suffered past persecution but are afraid of experiencing it in the future?
It can be possible, but is a lot more difficult, however, to prove this. Further, you will have to demonstrate why you have reason to believe you might be singled out for persecution.
What are the expectations of the one-year filing deadline?
As previously mentioned, an application for Asylum has to be filed within the first year of your most recent entry to the United States. But there are some exceptions to that rule such as changed circumstances or extraordinary circumstances. Even if an applicant meets one of these exceptions, they are still expected to file the application within a “reasonable period of time”, after the occurrence of the changed country conditions or extraordinary circumstances. These exceptions are given consideration on an individual basis.
Can I apply for asylum even if I was convicted of a crime?
Yes, you can still apply. Please note, however, that you may be denied Asylum status depending on the crime. On your application (Form I-589) you must disclose any criminal history as failure to do so will automatically result in your Asylum claim being referred to the Immigration Court and could result in fines or imprisonment for committing perjury.
So, how do I decide whether or not to file for asylum?
The decision to file for Asylum is a very serious one and is not to be made lightly. It carries tremendous consequences. If you are successful and are granted Asylum, you will no longer be undocumented and will have a secure legal status in the United States. If you are not successful in your application process however, you may be deported to the country where you fear persecution or torture.
If you are considering filing for Asylum, your first step should be to consult with an attorney that has experience with these types of cases, so you can get as much information as needed before making this important decision. Noone will be able to tell you if your Asylum case will be successful or not but an attorney will be able to make an informed decision about whether or not to apply in the first place.