If you are an immigrant seeking protection in the USA, asylum can provide you with the security you need.
In this guide, we explain the essential steps to file an asylum application in the US. In addition, our Los Angeles immigration lawyers at Lluis Law are also available to offer you personalized advice.
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Table of Contents
The Right to Asylum in the USA in 2024
The right to asylum in the United States remains a key protection for those who fear persecution or harm in their home country.
This relief allows people to remain in the US instead of being deported.
It should be noted that asylum is only available to those who are already in the U.S. Otherwise, you may qualify as a refugee in America.
What does it take to apply for asylum in the United States?
To apply for asylum in the USA, you must meet the following requirements:
- Be physically present in the United States and not be an American citizen;
- Demonstrate that you have suffered persecution or fear persecution due to:
- Race;
- Religion;
- Nationality;
- Belonging to a specific social group or;
- Political opinion.
- File Form I-589 with USCIS within one year of your arrival in the United States.
You may include your spouse and unmarried children under 21 years of age who are physically present in the United States on your application.
How can I obtain asylum in the USA?
There are several ways to apply for asylum in the United States, the most common being the affirmative process. To apply for asylum through this process, you must:
- Be physically present in the country, regardless of your immigration status or how you entered.
- File your asylum application within one year of your arrival in the US, unless you can justify your delay.
- Complete and file Form I-589 with USCIS.
While your asylum application is pending, you may remain in the US. If USCIS denies your application and you lack legal immigration status, USCIS will refer your case to an immigration judge for a hearing.
It is key to follow the instructions and comply with the deadlines established by USCIS to ensure the correct processing of your asylum application. Our immigration attorneys at Lluis Law will help you apply for this immigration relief.
How many years does asylum last in the United States?
Once individuals are granted asylum, they may remain in the United States indefinitely. Additionally, asylees may apply for a Green Card within one year of entering the United States.
How can I bring my family to the United States with asylum?
If you are granted asylum in the United States, you may bring your family by filing Form I-730 with USCIS.
With this form, you can petition to bring your spouse and unmarried children under 21 years of age join you in the US.
You must file your petition within 2 years of being granted asylum. However, there are certain exceptions to this rule.
Note: You may be interested in reviewing our blog on Family Unity Parole in Place or our page for our family-based immigration lawyer.
What types of asylum exist in the USA?
There are 3 main types of asylum in the United States:
- Affirmative Asylum: This is requested directly from USCIS and is only available to individuals who are not in removal proceedings.
- Credible fear assessment merits interview: If someone is detained and expresses fear of returning to their country, they may be assessed by an asylum officer. If the fear is proven, they may be eligible for asylum.
- Defensive asylum: This is used as a defense when the person is already in the process of deportation. The case is evaluated by an immigration judge who will decide whether or not asylum is granted.
Each process has different requirements and conditions, especially if the immigrant is already facing removal proceedings or was referred following a credible fear assessment.
Differences between types of asylum in the United States
There are certain differences between the types of asylum in the US. These are:
Affirmative Asylum with USCIS
- The applicant has not been placed in removal proceedings before an immigration judge, except in the case of an unaccompanied minor;
- The applicant may submit Form I-589 to USCIS;
- An affirmative asylum interview is conducted with a USCIS asylum officer.
If USCIS denies asylum, USCIS, ICE, or CBP may initiate removal proceedings against the applicant. However, the case may be referred to an immigration judge for consideration.
Not sure what to do if Immigration and Customs Enforcement shows up? You may be interested in learning what happens if ICE agents show up at your door.
Asylum Merits Interview with USCIS After a Positive Credible Fear Determination
- The applicant was placed on expedited removal and was determined to have a credible fear of persecution or torture.
- It is not necessary to file a Form I-589.
- Following the credible fear determination, an asylum merits interview is conducted with a USCIS asylum officer.
If USCIS does not grant asylum, the case may go to the immigration judge if USCIS referred the case to EOIR.
Defensive Asylum Processing with EOIR
- Immigration authorities have placed the applicant in deportation proceedings before an immigration judge.
- If there is no asylum application on file with USCIS, the applicants must file Form I-589 with the immigration judge if they want to apply for asylum.
- A hearing is held before an immigration judge with EOIR.
The immigration court provides a qualified interpreter for the asylum hearing and all court proceedings.
Interpreters in asylum processes
Other differences between these types of asylum include:
- Affirmative Asylum: It is generally necessary to provide a qualified interpreter.
- Asylum Merit Interview: USCIS provides a qualified interpreter.
- Defensive Asylum: The immigration court provides a qualified interpreter.
Can I work in the USA under asylum?
You can generally work in the United States under asylum, but you must follow certain steps:
1# Apply for employment authorization
You must file Form I-765 to obtain an employment authorization document (EAD). However, to do so, you must apply for the EAD within 150 days of filing your asylum application.
2# Comply with the waiting period
You will not be eligible to receive an EAD until your asylum application has been pending for at least 180 days in total. This typically includes a waiting period of 150 days plus an additional 30 days.
3# Avoid delays
Delays caused by you may affect the waiting period. If you request or cause delays, such as rescheduling interviews or failing to show up for appointments, these days will not count toward the waiting period.
4# Wait for the Decision
At this point 2 things can happen:
- You are granted asylum : You will be authorized to work immediately without the need for an additional EAD; or
- If you are denied asylum: Your EAD will be valid until the expiration date, or until 60 days after the denial decision.
Who is eligible for asylum in the United States?
Typically, immigrants who are eligible for asylum are those fleeing situations in their home countries where they face serious threats to their life or freedom.
These applicants typically come from countries with:
- Repressive governments;
- Armed conflicts; or
- Powerful groups that persecute certain sections of the population because of their race, religion, political opinions or membership in a particular social group. For example, human rights defenders.
It is common for asylum seekers to have exhausted all reliefs in their home country before fleeing to seek protection in the United States.
This is usually a last resort to ensure their safety and that of their families.
What can I do if I do not qualify for asylum in the USA?
If you do not qualify for asylum in the United States, there are still other forms of protection that could prevent your deportation. For example, you may be eligible for one of the following:
Withholding of Removal
Even if withholding of removal does not grant you a Green Card, you may be eligible to legally remain and work in the US.
To do so, you must show that you are likely to face persecution in your home country for the same reasons as the asylum claim.
However, this relief is stricter than asylum, as you must demonstrate a 50% or greater likelihood that you will be persecuted.
Protection under the Convention Against Torture (CAT)
If you fear torture in your home country, apply for protection under CAT. To obtain this, you must prove that your home country’s government could torture you.
Both applications are submitted through Form I-589, the same form used for defensive asylum.
Which US state is best for asylum seekers?
According to a report issued in 2023 by the Transactional Records Access Clearinghouse (TRAC Immigration), New York is the most sought-after destination for asylum seekers.
This puts it at nearly 39,000 immigrants who settled there in just 3 months. Therefore, New York can be a favorable choice due to its large support network and diverse immigrant communities. Other top destinations include:
- Los Angeles (California);
- Chicago (Illinois);
- Houston (Texas); and
- Miami (Florida).
Each of these places has particular advantages. Miami, for example, is a key destination for Cubans and other Caribbean migrants, while Houston is popular with those entering via the US southern border.
Frequently asked questions about asylum in the USA
Can a tourist apply for asylum in the US?
Yes, national foreigners can apply for asylum in the United States even if they entered with a tourist visa. To do so, they must meet certain requirements, such as filing their application within the first year of their arrival in the country.
For more information on legalization as a tourist, check our blog: “Change of status from visitor visa to Green Card”
How can I obtain a Green Card through asylum in the United States?
To obtain a Green Card (lawful permanent residence card) through asylum in the United States, you must wait one year after you have been granted asylum.
You may then file Form I-485 with USCIS to adjust status. You must file a separate Form I-485 packet for yourself and each family member who has received derivative asylum based on your case.
Can my lawyer be with me at the asylum interview?
Yes, your attorney can be present at your asylum interview.
If the interview is conducted at an asylum office, your attorney has the option to participate remotely by telephone.
How much does it cost to apply for asylum in the United States?
There is no cost to apply for asylum in the United States. Additionally, you may include your spouse and children who are present in the US as dependents on your application.
However, there may be associated costs, such as fees for an immigration attorney, if you apply for one.
What is a credible or reasonable fear for requesting asylum?
In the expedited removal process, immigration authorities use 2 levels of evaluation, credible fear and reasonable fear. This will be to determine if a person can apply for asylum in the United States:
- Credible Fear: The individuals are required to show a significant possibility that they may qualify for asylum or protection under CAT. This means that they must show that they may face persecution or torture if they return to their home country.
- Reasonable Fear: This is a higher standard than credible fear. The person must demonstrate a heightened likelihood of qualifying for immigration relief by showing that there is a substantial likelihood of persecution or torture if returned to their country.
If these standards are met, authorities can refer the case to an immigration court to apply for asylum.
Latino lawyers in Los Angeles, California, experts in asylum in the United States
Now that you know how asylum works in the United States, this process can be complex, especially the defensive one. This is because, generally, the authorities will detain the applicant for a short period of time.
During these periods, the authorities will be deporting the applicant, so it is essential that the applicant hires an experienced immigration attorney to resolve this situation.
The lawyers at Lluis Law have the prestige of having more than 50 years of combined experience in this field.
If you are looking for solid legal advice or defense regarding affirmative, defensive asylum, or any other immigration process, please do not hesitate to contact us.
LATINOS WITH OVER 50 YEARS EXPERIENCE
Tell Us Your Case