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Asylum Claims & Eligibility

Table of Contents

Who Is Eligible to Apply for Asylum?

You may qualify for asylum if you are arriving in, or are already in, the United States. You must be able to show that you face persecution or fear persecution in your home country (see more here). 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-589Application for Asylum and for 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 you are in the United States legally or illegally.

Who Isn't Eligible to Apply for Asylum?

You can’t apply for asylum if you previously applied for asylum and were denied by the Immigration Judge or Board of Immigration Appeals, unless you show that there are changed circumstances which materially affect your eligibility for asylum.

You will also be barred if you could be removed to a safe third country following a bilateral or multilateral agreement.

You can’t apply for asylum in the United States if you passed 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. Accordingly, it forces applicants to seek refugee protection in the first safe country they arrive in. This agreement does not apply to Canadian citizens and stateless persons.

The government is also trying to apply the safe third country rule to all asylum applicants crossing the Southern border. In the Asylum Eligibility and Procedural Modifications, DHS bars applicants from applying for asylum if they crossed the southern border without applying for asylum in a third country. The Supreme Court, in a brief order, allowed the Trump administration to continue applying this rule until its legality is decided in lower courts.

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:

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

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

How Do I Apply for Asylum?

To apply for asylum, you must complete Form I-589 and follow the instructions carefully.

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 either 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 Apply for Asylum Even If I Was Convicted of a Crime?

Yes, you can apply. However,  depending on the crime, you may not be granted asylum. Make sure to disclose any criminal history on your Form I-589 and at your asylum interview. Failure to disclose this information may result in your asylum claim being referred to the Immigration Court and possible 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 is true no matter how old they are, whether they are married, whether they are in the United States, or whether they are filing a separate asylum application.

You can ask for your spouse and/or your children who are under the age of 21 and unmarried to be included in your asylum decision if they are in the United States. This means that, if you are granted asylum, they will also be granted asylum and will be allowed to remain in the United States. However, if you are referred to the Immigration Court, they will also be referred 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.

Children who are married and/or children who are 21 years of age or older at the time you file your asylum application must file separately for asylum by submitting their own asylum applications (Form I-589).

Once you are granted asylum, you can also ask the government to:

  • Bring your spouse and/or children to the United States 
  • Allow those already here but who were 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.

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 (includes 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 prior to arriving in the United States

You will also be barred from being granted asylum if you are inadmissible to the U.S. or removable for certain 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/or children who were under 21 at the time you filed your application are included in your asylum application as dependents, they must also appear for the interview. They must also bring any identity or travel documents they have in their possession. Although you are required to list all of your family members on your application, you only need to bring those to the interview that will be included 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 previously submitted with your Form I-589
  • A copy of your Form I-589 and other material that you previously submitted
  • Any additional items that can help your claim that you have not already submitted with your application

Note: Any document in a language other than English must be accompanied by an adequate English translation that the translator has certified as complete and correct, and by the translator's certification 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. It is very important that you 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 additional information. A decision will not be made at the asylum interview.

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

The Asylum Officer will look at your testimony, the information you provide on your application, and any additional materials you submit to determine if you are a refugee and whether any 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 evaluate the credibility of your claim.

When Will I Be Notified About the Decision on My Asylum Claim?

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

  • You were interviewed at a district office
  • You are not currently in a valid status 
  • Your case will be reviewed by Asylum Division Headquarters staff

 You will generally receive 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 you are granted asylum, you may request asylum status for any spouse or child who was not included in your asylum application. Your spouse and child are referred to as derivative asylees. Note: 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 included in your asylum claim  

You must submit a Form I-730, Refugee and Asylee Relative Petition, to the Nebraska Service Center, P.O. Box 87730, Lincoln, NE 68501-7730. The Form I-730 must be filed for each qualifying family member within 2 years of the date you were granted asylum status unless USCIS determines that this time period should be 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 you have been physically present in the United States for one year after the date you were granted 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 the Nebraska Service Center, P.O. Box 87485, Lincoln, Nebraska, 68501-7485.

Will I Get a Work Permit?

You can't apply for a work permit at the same time you apply for asylum. You will be authorized to work in the United States if  one of the following happens:

  • You are granted asylum
  • You are given a recommended approval or conditional grant of asylum 
  • 150 days have passed since you filed your complete application with the Service Center and no decision has been made 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 receive permission before you leave the United States in order to return to the United States. This permission is called Advance Parole.

If you do not apply for Advance Parole before you leave the country, you will be presumed to have abandoned your application with USCIS and you may not be permitted to return to the United States. Also, if you get advance parole and return to your country of feared persecution, you will be presumed to have abandoned your asylum request, unless you can show compelling reasons for the return.

If your application for asylum is approved, 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

If you or someone you love is hoping to be granted asylum, you'll first need to understand eligibility criteria. Immigration laws can be difficult to understand. That is why it is a good idea to have a legal advocate on your side. Get a head start today and contact an immigration law attorney near you.

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Contact a qualified immigration attorney to help you with asylum-related issues.

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