Asylum Claims and Eligibility

This article provides a comprehensive overview of the frequently asked questions about asylum claims and eligibility in the United States. Here, we'll discuss the intricacies of the asylum application, its requirements, and the potential challenges you might encounter. Whether you are starting your immigration journey or want to understand the process better, this FAQ addresses the most common questions surrounding U.S. asylum.

• Who is eligible to apply for asylum?
• Who isn't eligible?
• How much time do I have to apply?
• How do I apply for asylum?
• Can I apply for asylum if I am illegally in the U.S.?
• Can I still apply for asylum if I have a criminal conviction?
• What about my spouse and children?
• What is the fee for asylum in the U.S.?
• How does the asylum officer or immigration judge determine if I am eligible for asylum?
• What should I bring with me to the asylum interview?
• What will happen at my asylum interview?
• How will the asylum officer make the decision whether to grant me asylum?
• When will I know about the decision on my asylum claim?
• Will I be able to petition to bring my family to the U.S.?
• When can I apply to become a lawful permanent resident?
• Will I get a work permit?
• Can I travel outside the U.S.?
• Get Professional Legal Help With Your Asylum Claim

NOTE: The "Circumvention of Lawful Pathways" rule, established on Aug. 3, 2023, offers crucial regulations on processing people crossing the U.S. border without authorization. According to the law, people who enter the U.S. through its southwest borders without proper authorization are ineligible for asylum. The U.S. government encourages migrants to enter the U.S. legally, safely, and orderly.

Who Is Eligible to Apply for Asylum?

To apply for asylum in the United States, you may:

• Ask for asylum at a port of entry (airport, seaport, or border crossing), or
• File Form I-589, Application for Asylum and Withholding of Removal, at the appropriate Service Center within one year of your arrival in the United States.

Remember, you can apply for asylum regardless of your immigration status, whether in the United States lawfully as a migrant or not.

Who Isn't Eligible to Apply for Asylum?

You cannot apply for asylum in the United States if you pass through a safe third country. For instance, Canada and the U.S. signed a safe third-party agreement in 2004. The agreement states that both countries are safe for refugees. It forces applicants to seek refugee protection in the first "safe country" they pass through. This agreement does not apply to Canadian citizens and stateless persons.

The "Circumvention of Lawful Pathways" rule, established on Aug. 3, 2023, offers crucial rules on processing people crossing the U.S. border without authorization. According to the final rule, noncitizens who cross the southwest U.S. border without having done the following are ineligible for asylum:

1. Did not use the existing lawful immigration process
2. Did not lawfully present at the port of entry at a rescheduled time, the CBP One app, or
3. Did not seek asylum in the third country through which they traveled

The immigration review board will consider these factors. But, migrants can rebut these presumptions by showing exceptional circumstances. They should show that at the time of their unauthorized entry, they or the members of their family who were traveling:

• Faced extreme and imminent threats to safety or life. This may include threat of kidnapping, torture, rape, or murder
• Faced an acute medical emergency
• Were victims of severe forms of human trafficking

The Donald Trump and Joe Biden administrations tried to apply the safe third country rule to asylum seekers crossing U.S. borders. In the Asylum Eligibility and Procedural Modifications, the Department of Homeland Security (DHS) bars applicants from applying for asylum if they cross the southern border without applying for asylum in a third country. This rule was then strengthened by the passage of the "Circumvention of Lawful Pathways" law on Aug. 3, 2023.

Lastly, you cannot reapply for asylum if you applied or the immigration judge or Board of Immigration Appeals denied your application unless you can show that a change of circumstances materially affects your eligibility for asylum.

How Much Time Do I Have to Apply?

You must apply for asylum within one year of your last arrival in the United States. You can also apply for asylum later than one year if you meet one of the following:

• Circumstances have changed that now make you eligible for asylum
• Extraordinary circumstances prevent you from filing within one year

These may include specific changes in the conditions in your country, certain changes in your circumstances, and other events.

How Do I Apply for Asylum?

Each year, there are thousands of migrants coming to the U.S. with asylee or refugee status. They often suffered persecution due to their religion, race, nationality, political opinion, or membership in a particular social group.

But, you can only file an asylum application if you are physically present in the United States and not a U.S. citizen. You can stay in the United States if you are eligible for asylum application. To start the process, you should file the Application for Asylum and Withholding of Removal (Form I-589) within one year of arrival in the country. If you fail to file this application within one year of arrival in the U.S., you may not be eligible to apply for asylum. This rule follows Section 208(a)(2)(B) of the Immigration and Nationality Act (INA).

It is important to note that there are two ways of applying for asylum: affirmatively or defensively. Find out about these options in more detail in this article by FindLaw.

Can I Apply for Asylum If I Am Illegally in the U.S.?

Yes, you can apply even if you are here illegally. You may apply for asylum regardless of your immigration status if:

• You file your application within one year of your last arrival or
• You show that you are eligible for an exception to that rule based on changed circumstances or extraordinary circumstances. You will also need to show that you filed for asylum within a reasonable amount of time, given those circumstances.

Can I Still Apply for Asylum if I Have a Criminal Conviction?

Yes, you can still apply. But depending on the crime, they might not grant you asylum. Remember to disclose any criminal history on your Form I-589 and at your asylum interview. If you fail to disclose this information, they might refer your asylum claim to the Immigration Court, and you could face fines or imprisonment for committing perjury.

What About My Spouse and Children?

You must list your spouse and all your children on your Form I-589. This applies regardless of their age, marital status, or whether they are in the United States. It is also regardless if they're filing a separate asylum application.

You can ask to include your spouse and children under 21 and unmarried in your asylum decision if they are in the United States. This means that if you receive asylum, they will also get it and can stay in the United States. But, if they refer you to the Immigration Court for removal, they will also refer you to the court for removal proceedings.

You should read the instructions on Form I-589 for information on the documents you need to submit to show your family relationships. This can include marriage certificates and birth certificates.

Married children and children who are 21 years of age or older, when you submit your asylum application, must file their asylum applications using Form I-589.

Once you get asylum, you can also ask the government to:

• Bring your spouse and children to the United States
• Allow those already here but not included in your asylum decision to remain in the U.S.

What Is the Fee for Asylum?

There is no fee to apply for asylum. But be aware of scammers. Some entities may falsely claim fees or other related payments to the asylum process. When in doubt, refer to the USCIS webpage or seek legal advice from an immigration law attorney.

How Does the Asylum Officer or Immigration Judge Determine If I Am Eligible for Asylum?

You have to meet the definition of a refugee for the asylum officer or immigration judge to conclude you are eligible for asylum. A refugee is:

"Someone who is unable or unwilling to return to and avail himself or herself of the protection of his or her home country or, if stateless, country of last habitual residence because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

An officer or judge will use the information you provide on your application and in your interview or hearing to decide if you meet this definition.

The asylum officer or immigration judge will also consider whether any exceptions apply. The law states that you will not get asylum if you:

• Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion
• Were convicted of a particularly serious crime (including aggravated felonies)
• Committed a serious nonpolitical crime outside the United States
• Pose a danger to the security of the United States
• Firmly resettled in another country before arriving in the United States

You won't get asylum if you are inadmissible to the U.S. or removable for specific reasons.

What Should I Bring With Me to the Asylum Interview?

You have the right to bring an attorney or representative. You must bring an interpreter to your interview if you are not fluent in English.

If your spouse and children who were under 21 at the time you filed your application are in your asylum application as dependents, they must also appear for the interview. They must bring any identity or travel documents they have. Although you must list all your family members on your application, you only need to bring those family members to the interview whom you want to include as dependents in the asylum decision.

You should also bring the following if available:

• Some form of identification, including any passport(s), other travel or identification documents, or Form I-94 Arrival-Departure Record
• The originals of any birth certificates, marriage certificates, or other documents you submitted with your Form I-589
• A copy of your Application for Asylum and for Withholding of Removal (Form I-589) and other material that you submitted
• Any extra items that can help your claim that you have not already submitted with your application

Note: An adequate English translation must go with any document in a language other than English. The translator should certify that the document is complete and correct and that he or she is competent to translate into English the language used in the document.

What Will Happen at My Asylum Interview?

The interview will last at least an hour, although the time may vary depending on the case. The asylum officer will generally follow these steps:

• Ask you to take an oath promising to tell the truth during the interview
• Verify your identity
• Ask you basic biographical questions
• Ask you about the reasons you are applying for asylum. You must tell the asylum officer your experiences so they can determine whether you qualify as a refugee.
• Ask you questions to determine if any bars apply to get asylum

Everything you say to the asylum officer will be confidential. You and your attorney or representative, if any, will have time at the end of the interview to make a statement or add any more information. The officer will give you a decision at the asylum interview.

How Will the Asylum Officer Make the Decision Whether to Grant Me Asylum?

The asylum officer will examine your testimony, the information you provide on your application, and any more materials you submit. They will determine if you are a refugee and whether mandatory bars apply. The asylum officer will also consider country condition information from reliable sources and will consider the relevant law. The asylum officer will also check the credibility of your claim.

When Will I Know About the Decision on My Asylum Claim?

In some cases, you will return to the asylum office where your interview was two weeks after the interview to pick up your decision. But, there may be longer processing times if:

• Your interview was at a district office
• You are not in a valid status
• The Asylum Division Headquarters staff will review your case

You will get the decision by mail if any of these circumstances occur.

Will I Be Able to Petition to Bring My Family to the U.S.?

If granted asylum, you may request asylum status for any spouse or child not included in your asylum application. Your spouse and child are derivative asylees. For your child to qualify, they must:

• Be unmarried
• Be under 21 years of age as of the date you filed the asylum application
• Not have been in your asylum claim

To start the petition for asylum process, you should submit Form I-730, Refugee and Asylee Relative Petition, to the Texas Service Center. Mail your petition to:

USCIS Texas Service Center, Attn: I-730
6046 N. Belt Line Road, Ste. 730
Irving, TX 75038-0019

You must fill out form I-730 for each qualifying family member within two years of the date you got asylum status. An exception is when USCIS determines that this period should get extended for other reasons.

When Can I Apply to Become a Lawful Permanent Resident?

You can apply for lawful permanent resident status (green card) after being physically present in the United States for one year after the date you got asylum status. To apply for lawful permanent resident status, you must submit a separate Form I-485, Application to Register Permanent Residence or Adjust Status, for yourself and your family member that qualifies. Send the application to:

USCIS Texas Service Center, Attn: I-730
6046 N. Belt Line Road, Ste. 730
Irving, TX 75038-0019

Will I Get a Work Authorization?

You can't apply for work authorization while you apply for asylum. You can work in the United States if one of the following happens:

• You get asylum
• You get a recommended approval or conditional grant of asylum
• 150 days have passed since you filed your complete application with the Service Center, and there's still no decision on your application

USCIS has 30 days to either grant or deny your request for employment. The application to apply for an Employment Authorization Document (EAD) is the Form I-765.

Can I Travel Outside the U.S.?

If you are applying for asylum and want to travel outside the United States, you must get permission before you leave the United States to return. This permission is called advance parole.

If you leave the country without first applying for an advance parole, the USCIS will presume you have abandoned your asylum application. The USCIS might not let you return to the U.S. Also, suppose you applied for an advance parole and returned to your home country. In that case, the USCIS will presume you abandoned your asylum petition unless you presented a compelling reason for traveling back to your country of nationality.

After the approval of your asylum application, you may apply for a Refugee Travel Document. This document will allow you to travel abroad and return to the United States.

Get Professional Legal Help With Your Asylum Claim

Navigating U.S. immigration laws and your eligibility for asylum is daunting. There are complex rules that are hard to understand, especially if you do not have a legal background. A lawyer's experience in handling various immigration processes is helpful as you and your family navigate your immigration journey. Get a head start today and contact an immigration law attorney near you.