Asylum in the USA
Seeking asylum in the United States involves strict eligibility requirements, filing rules and evidentiary standards. Our asylum lawyers assist individuals with preparing asylum claims, reviewing supporting evidence, preparing for USCIS interviews and addressing issues that may arise in immigration court proceedings.
Each asylum case depends on the applicant’s personal circumstances, immigration history and evidence of persecution or risk. Early legal review can help identify procedural issues and determine the appropriate strategy for an affirmative or defensive asylum claim.
What Is Asylum in the U.S.?
Asylum is a form of protection available to certain people who are physically present in the United States or arriving in the country and who meet the legal definition of a refugee.
An applicant generally must establish past persecution or a well-founded fear of future persecution because of race, religion, nationality, political opinion or membership in a particular social group.
Being afraid to return to a country is not by itself sufficient. The applicant must establish the required connection between the feared persecution and a protected ground and must not be subject to a statutory bar to asylum.
Legal Representation for Complex Asylum Claims
Our international humanitarian lawyers provide expert guidance through rigorous immigration court and asylum office procedures. We compile comprehensive country conditions research, substantiate well-founded fear parameters, and enforce non-refoulement principles to secure your legal status and safety.
Who Can Apply for Asylum in the USA?
A person may apply for asylum regardless of their current immigration status, subject to the eligibility requirements and applicable statutory restrictions.
In most cases, Form I-589 must be filed within one year of the applicant’s last arrival in the United States. Exceptions can apply where changed circumstances materially affect asylum eligibility or extraordinary circumstances explain the delay. USCIS currently reflects these exceptions in its Form I-589 instructions.
Other legal bars can also affect eligibility. Because asylum cases are fact-specific, an applicant’s immigration history, criminal record, prior residence in other countries and other relevant circumstances should be reviewed individually.
What Are the Types of Asylum Cases in the USA?
There are two principal routes: affirmative asylum and defensive asylum.
Affirmative Asylum
Affirmative asylum generally applies when a person is physically present in the United States and is not currently in removal proceedings.
The applicant files Form I-589 with USCIS according to the applicable filing instructions. USCIS may then schedule an asylum interview at an asylum office.
The applicant must provide testimony and supporting evidence sufficient to establish eligibility for asylum.
Defensive Asylum
Defensive asylum is requested in immigration court when a person is already in removal proceedings.
The application is considered by an immigration judge rather than decided through the ordinary affirmative USCIS process. EOIR confirms that defensive asylum applications are filed with the immigration court, while affirmative applications are filed with the DHS Asylum Office.
The legal standard for asylum remains important in both procedures, but the procedural steps are different.
How Do You Apply for Asylum in the USA?
The precise procedure depends on whether the case is affirmative or defensive.
An asylum claim generally involves:
- determining the correct filing procedure;
- preparing Form I-589;
- preparing a detailed account of the persecution or feared harm;
- gathering supporting documentary evidence;
- submitting relevant country-condition evidence;
- attending required appointments or interviews;
- responding to additional procedural or evidentiary issues;
- appearing in immigration court where the case is defensive or otherwise proceeds before EOIR.
Consistency between the written application, supporting evidence and oral testimony is particularly important.
What Happens at an Asylum Interview?
In an affirmative case, USCIS may schedule the applicant for an asylum interview.
The asylum officer reviews the application, supporting evidence and the applicant’s testimony. Questions may concern the events that led to the asylum claim, the applicant’s fear of returning, immigration history and other issues relevant to eligibility.
Preparation should therefore involve more than memorising the application. The applicant should understand the factual and legal basis of the claim and be prepared to explain material events accurately.
Where a lawyer represents the applicant, legal assistance can include reviewing the evidence, identifying potential inconsistencies and preparing the applicant for the issues likely to arise during the interview.
What Happens in Immigration Court?
A defensive asylum claim is decided by an immigration judge.
Proceedings may involve written submissions, documentary evidence, testimony, legal arguments and examination of the applicant and other witnesses. The Department of Homeland Security is also a party to removal proceedings.
If asylum is granted by an immigration judge and the decision becomes administratively final, USCIS provides documentation of the granted status.
If asylum is not granted, the next legal steps depend on the type of decision and the procedural posture of the case.
How Can an Asylum Lawyer Help?
An asylum lawyer can assist at different stages of a U.S. asylum case.
Legal assistance may include:
Eligibility assessment. Reviewing the facts of the case, immigration history and possible statutory bars.
Application preparation. Preparing or reviewing Form I-589 and organising supporting evidence.
Evidence strategy. Identifying documents, witness evidence and country-condition materials relevant to the claim.
Interview preparation. Preparing the applicant for questions that may arise during a USCIS asylum interview.
Immigration court representation. Preparing legal submissions and representing the applicant in defensive asylum proceedings where appropriate.
Case strategy. Addressing complications such as delayed filing, prior immigration proceedings, inconsistent records or other legal issues affecting eligibility.
Legal representation cannot guarantee that asylum will be granted. The decision depends on the applicable law, the evidence and the circumstances of the individual case.
What Happens After Asylum Is Granted?
A person granted asylum receives lawful asylum status in the United States and is authorised to work incident to that status.
Asylees may also become eligible for additional immigration benefits.
These can include:
- applying for lawful permanent residence after satisfying the applicable requirements, including the required period of physical presence;
- seeking derivative status for certain qualifying family members;
- obtaining documentation reflecting asylum status and employment authorisation.
USCIS states that principal asylees can generally use Form I-730 for qualifying spouses and children within two years of the asylum grant, subject to the applicable requirements and exceptions.
Speak With an Asylum Lawyer
U.S. asylum cases can involve complex questions of eligibility, evidence, filing deadlines and procedure.
Our asylum lawyers can review the circumstances of your case, determine which asylum procedure may apply and assist with preparation for USCIS or immigration court proceedings.
Frequently Asked Questions
A person who is physically present in the United States or arriving in the country may seek asylum by filing Form I-589 through the procedure that applies to their case. Applicants who are not in removal proceedings generally use the affirmative asylum process, while people already in removal proceedings seek asylum defensively before an immigration judge.
There is no single timeframe for a U.S. asylum case. Processing time can depend on whether the claim is affirmative or defensive, the office or immigration court handling the case, procedural delays and the circumstances of the individual matter. Current processing information should be checked with USCIS or EOIR rather than relying on a fixed estimate.
Obtaining asylum requires the applicant to satisfy specific legal requirements and support the claim with credible testimony and relevant evidence. The difficulty of a case depends on the facts, the protected ground relied upon, available evidence, immigration history and any legal bars that may apply.
Legal representation is not mandatory in every asylum case, but an asylum lawyer can help assess eligibility, prepare Form I-589 and supporting evidence, prepare for an asylum interview and represent an applicant in immigration court where appropriate.