Asylum in the United States

What is Asylum?

Asylum and refugee status are special forms of legal protections provided specifically for people who have left their home country due to persecution or have the fear of persecution and are now afraid to return.  Asylum allows individuals to remain in the U.S. and eventually to become lawful permanent residents.

Each year, thousands of people come to the United States to escape the suffering they experienced in their home country on the basis of his or her:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Sexual orientation
  • Political opinion

If you are seeking asylum, you must establish that you have suffered from persecution in at least one of these areas.

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What is persecution according to the United States Citizenship and Immigration Services?

Persecution is harm that is inflicted either directly by the government, or by other individuals who the government cannot or will not control.  Persecution often means that an individual is harassed, punished, injured, oppressed, or otherwise suffers physical or psychological harms.  From the law that has been developed through court cases, persecution can also include acts such as threats, other acts of violence, torture, inappropriate imprisonment, or denial of basic human rights or freedoms.   If you have suffered any of these types of harms on the basis of your race, religion, nationality, membership in a particular social group, sexual orientation or political opinions, you have suffered from persecution. If you have questions about making an asylum application as a foreign national with protected status as a member of a persecuted group, do not hesitate to contact us for a free consultation.  Call or email us today.

 

What is a “Credible Fear” of Persecution according to new immigration law?

The USCIS website defines credible fear as “a significant possibility that you can establish in a hearing before an Immigration Judge that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country.”  Read more on the credible fear interview here.

 

Am I Eligible for Asylum in the United States?

To be eligible for asylum in the United States, you must meet the definition of refugee in the Immigration and Nationality Act (INA), must be present in the U.S., and have entered within the last year.  You can't have already been denied asylum, unless your circumstances have changed dramatically since the last time you applied, and you cannot be firmly resettled in another country. However, your current immigration status in the U.S., or whether you are in the country on a non-immigrant visa or not is irrelevant. Once granted, both refugee and asylee statuses allow you to stay in the United States indefinitely. Contact our Los Angeles immigration lawyers to discuss your asylum application today. You will receive expert advice regarding your legal situation from one of our experienced immigration attorneys in a free consultation.

[LINK TO REFUGEE STATUS]

 

The One Year Filing Deadline for your Asylum Application

You can apply for asylum within one year of your last entry into the U.S., even if you are an illegal immigrant.  You must demonstrate by clear and convincing evidence that their application was filed within one year of arrival in the United States.  However if you miss the one year filing deadline, your asylum application will be declined unless you meet a legally recognized exception to the deadline. For more information on these exceptions, please visit our section on one year rule exceptions. [LINK TO ONE YEAR RULE EXCEPTIONS]

If you would like help in applying for asylum or would like to discuss what options you may have if you missed the application deadline, please contact our Los Angeles immigration attorneys. We will examine your case and immigration history closely to determine the best options for you.

What is “Firm Resettlement” and how will it affect my asylum application?

The Immigration and Nationality Act bars asylum if you were “firmly resettled” in another country prior to arriving in the United States.  For more information on firm resettlement, please read more on our section here.    [LINK TO FIRM RESETTLEMENT]

 

Temporary Protected Status in lieu of Asylum

If your life or freedom would be threatened in your own country on account of one of the five enumerated grounds of asylum you are protected from removal under United States and international law. The United States offers Temporary Protected Status (TPS) to individuals from countries that have suffered natural disasters or that are undergoing war or severe civil unrest, forcing the displacement of citizens of that country. Temporary Protected Status is effective as long as the conditions persist in the country in question.  At JCS Immigration and Visa Services, we are dedicated to helping our clients achieve their immigration goals. Our experienced immigration attorneys can help you too.  Call or email for a free, confidential initial consultation. For more information on TPS, please read our section that covers it more in depth.   

 

How Do I Apply for Asylum?

There are two paths to asylum in the United States:  affirmative and defensive asylum.  You can successfully reach asylum through either, however it is important that you determine the best path for you.  Our asylum lawyers know what kind of factual evidence is persuasive in asylum related cases, and we can help you make a strong application to increase the likelihood that you will be granted asylum.  Feel free to call our Los Angeles immigration and asylum attorneys for an initial consultation  at (213) 738-8700.

 

What is an Affirmative Asylum Application?

When you are already in the U.S., you can submit an affirmative application for asylum. You cannot be in removal or deportation proceedings. The process for an affirmative application is described in the following section on asylum application requirements.

What is a Defensive Asylum application?

Defensive asylum proceedings are definitely the less preferred of options, but you can still petition for consideration for refugee status with it.  This occurs after you are taken into custody and given a removal order.  If being deported would pose a serious risk, you can ask for asylum. Unlike affirmative asylum where you must fill out and send in forms, defensive asylum proceedings take place in immigration court. It is highly recommended that you retain an attorney for the duration of the proceedings.  You may be able to successfully obtain asylum though Withholding of Removal or protection under the Convention Against Torture. [LINK TO WITHHOLDING OF REMOVAL]  AND [LINK TO CAT]

 

What is required for my asylum application?

  • United States Citizenship and Immigration Services paperwork and United States Homeland Security approval
  • A declaration of detailed personal information and statement of circumstances
  • Corroborating documents (all supporting medical reports, police reports, letters from witnesses, etc.)
  • Country conditions documentation (human rights reports, newspaper articles, reports from expert witnesses) demonstrating how you suffered or have reasonable fears of suffering from persecution. If possible, it is beneficial to demonstrate that the government in your home country has actively participated in or allowed persecutions to exist.

 

How does Immigration reform affect my application for asylum?

 

Filing for asylum is a very serious decision and you should consult with an immigration attorney before filing. Asylum and immigration law has been changing enormously in recent years.  Many years ago, asylum in the U.S. was most commonly granted to people fleeing Communist regimes, but its scope is more expansive and, as explained previously, asylum can encompass and protect any person persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. However, immigration reform in recent years has limited some eligibility and has also restricted the evidence that can be put forth in order to receive the protection of asylum.  If you or a family member seek asylum in the United States, your attorney will need experience applying a variety of different strategies to be successful.

 

What happens after my asylum application is filed with the USCIS?

  • Within six weeks of mailing in the application, you have an interview at the local asylum office in which you  describe what happened in the past and what you fear may happen in the future if returned to your home country
  • Two weeks after the interview, you return in person to pick up the decision
  • The decision will either recommend asylum or it will not

 

What if asylum is not granted after the USCIS interview?

 

  • If you are in valid status (tourist, student, etc.), you will be issued an Intent to Deny and can submit further evidence about why you should win the case; if you are still not granted asylum, you can remain in the U.S. for the duration of the valid status
  • If  you are not in valid status (visa overstay, entered without inspection etc.), then you will be placed in removal (deportation) proceedings
  • In removal proceedings, you get a second chance to explain your case to an Immigration Judge. The Judge can grant you asylum or issue a deportation order against the applicant
  • There is always a substantial risk of removal (deportation) when you file for asylum

 

Can I apply for a work permit after submitting an asylum application?

Asylees and refugees can obtain permission to work and are allowed to apply for a green card within one year of either entering the United States as a refugee or being approved for asylum. Applicants for asylum cannot file for permission to work in the United States at the same time as filing for asylum.

You may apply for employment authorization if:

  • 150 days have passed since you filed your complete asylum application, excluding any delays caused by you (such as interview reschedule requests) and
  • No decisions has been made on your application

 

After I obtain a work permit, when can I start working?

Once granted asylum, you may work immediately. Some Asylees choose to obtain employment authorization documents (EADs) for convenience or identification, but an EAD is not required for work if you are an Asylee.  As with most areas of the asylum process, this is a time sensitive application and it is important to make certain that you are filing at the right time.  We encourage you to discuss any of your U.S. immigration needs with our attorneys.  For a free initial consultation please call or email JCS Immigration and Visa Law Office.

 

Read more about Asylum and Employment Authorization. [LINK TO ASYLUM EMPLOYMENT AND ASYLUM CLOCK]

 

Can my children and spouse claim asylum with me?

If you are eligible to apply for asylum, you may include your spouse and children who are also in the United States on your application at the time of filing or at any time until a final decision is made on the application. Children are only eligible to be included on the same application if they are unmarried and under the age of 21.

You must file the petition within two years of being granted asylum unless there are humanitarian reasons to excuse this deadline.  Read more about bringing a family member to the U.S. for asylum. [LINK TO BRINGING FAMILY MEMBER]

Can I bring my family to the United States if I was granted asylum?

 

If you have been granted asylum, you may petition to bring your spouse and children over to the United States. Children must be unmarried and under the age of 21. The petition for your spouse and children must be filed without two years of being granted asylum.   We are experienced with immigration and visa law, and can help you in filing a petition to include your spouse or children on your asylum application.  Please contact us by phone or email.

If  you are trying to obtain asylum through a spouse or parent, but  lose your relationship to the principal asylee, or you are a child who marries or turns 21 and no longer meets the definition of “child” for immigration purposes,  you can still retain your status as an asylee. A nunc pro tunc asylum application is the next step towards receiving your Green Card.

For more information on a nunc pro tunc asylum application please read more in our section here.   [LINK TO NUNC PRO TUNC]

 

Can I file for permanent residence and obtain a Green Card after I am granted asylum?

 

Individuals who have been granted asylum must wait one year before being able to apply for a Green Card and become a lawful permanent resident (LPR) of the United States.  You may apply for a green card one year after being granted asylum.   You will need an application and specific documentation for yourself and, if applicable, for each family member who received derivative asylum based on your case.  If you would like more information regarding any type of U.S. permanent green card visas, do not hesitate to contact our green card and visa lawyers at our Los Angeles office.

How to can I obtain a Green Card as an Asylee?

You will be required to submit an application and other pertinent information and documentation to USCIS.  Our experienced immigration attorneys can help you with your Green Card application and guide you through the Green Card process.  Please feel free to call or email us.

 

Bars to Asylum in U.S. Immigration Law  

 

If you seek asylum or refugee status must apply for it and convince the U.S. government of your need for protection from persecution or that they have a real fear of persecution.  However, even if you can prove that you have suffered from persecution or have experienced a real fear of persecution, you will not be granted automatic asylum.

Under established U.S. law, you will be barred from obtaining asylum or refugee status if you:

  • have assisted in the persecution of others
  • are a threat to U.S. safety or security, or
  • are already "firmly resettled" in another country.

 

Applicants Who Have Assisted in the Persecution of Others

 

The U.S. government will deny the application for refugee or asylum status if you have ordered, incited, assisted, or participated in the persecution of any other person because of that person's race, religion, nationality, membership in a particular social group, or political opinion.

Asylum Applicants Who Pose Threats to U.S. Safety or Security

 

If you have been convicted of a "particularly serious crime" and are therefore, a danger to the community of the United States you will not be granted asylum or refugee status. Although assessed on a case by case basis, immigration laws strictly define “aggravated felonies,” and any crimes that fall into that definition will serve to bar you from refugee or asylee status.  Additionally, if you have been involved in terrorist activity, or you can reasonably be regarded as a threat to U.S. security, you will not be granted asylum or refugee status.

 

Asylum Applicants Who Have Firmly Resettled in Another Country

 

If you have fled your home country, but then became "firmly resettled" in another country, you will also be denied asylum or refugee status. This means that you applied for protection in the U.S. but has also:

  • been granted permanent residency or citizenship by another country
  • made permanent housing arrangements and traveled in and out of the adopted country, or
  • achieved economic independence because of education, employment, or the exercise of professional or business affairs in the adopted country.