Persons with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion may be eligible to apply for asylum or refugee status in the U.S.
What is asylum, and who may apply for it?
Asylum may be granted to people who are already in the United States and are unable or unwilling to return to their home country 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. If you are granted asylum, you will be allowed to live and work in the United States. You also will be able to apply for permanent resident status one year after you are granted asylum.
You may include your spouse and any unmarried children under the age of 21 in your own asylum application if your spouse or children are in the United States. Asylum status and refugee status are closely related. They differ only in the place where a person asks for the status. Asylum is asked for in the United States, refugee status is asked for outside of the United States. However, all people who are granted asylum must meet the definition of a refugee. If you do not qualify for asylum, but fear being tortured upon returning to your homeland, you can apply for consideration under the Torture Convention.
Who is eligible to apply for asylum?
To be eligible for asylum in the United States, you must ask for asylum at a port-of-entry (airport, seaport or border crossing), or file an application within one year of your arrival in the United States. You may ask later than one year if conditions in your country have changed or if your personal circumstances have changed within the past year prior to asking for asylum, and those changes of circumstances affected your eligibility for asylum. You may also be excused from the one-year deadline if extraordinary circumstance prevented you from filing within the one-year period after your arrival, so long as you apply within a reasonable time given those circumstances. You may apply for asylum regardless of your immigration status, meaning that you may apply even if you are illegally in the United States.
In addition, you must qualify for asylum under the definition of “refugee.” Your eligibility will be based on information you provide on your application and during an interview with an Asylum Officer or Immigration Judge. If you have been placed in removal (deportation) proceedings in Immigration Court, an Immigration Judge will hear and decide your case. If you have not been placed in removal proceedings and apply with the U.S. Citizenship & Immigration Services (CIS), an Asylum Officer will interview you and decide whether you are eligible for asylum. Asylum Officers will grant asylum, deny asylum or refer the case to an Immigration Judge for a final decision.
If an Asylum Officer finds that you are not eligible for asylum and you are in the United States illegally, the Asylum Officer will place you in removal proceedings and refer your application to an Immigration Judge for a final decision. Immigration Judges also decide on removal if an applicant is found ineligible for asylum and is illegally in the United States. If you are in valid immigrant or nonimmigrant status and the Asylum Officer finds that you are not eligible for asylum, the Asylum Officer will send you a notice explaining that the INS intends to deny your request for asylum. You will be given an opportunity to respond to that notice before a decision is made on your application.
The instructions attached to the application form for asylum, Form I-589 (Application for Asylum and for Withholding of Removal), are helpful in defining the eligibility criteria for asylum. You can find a copy of the form here.
What forms do I need to apply for asylum?
To ask for asylum, you will need to complete a Form I-589 and follow the instructions carefully. Forms are available online from CIS here, or by submitting a request to CIS for a form by mail. There is no filing fee. You can normally expect to complete your asylum processing within 180 days from the date of filing your application. If you are applying with CIS for asylum, you should send your application to the CIS Service Center that has jurisdiction over your place of residence. You will find information on where to send your application in the instructions to Form I-589. If you have been placed in proceedings before an Immigration Judge, you should file the form with the Immigration Court.
Can I travel outside the United States while my asylum application is being considered?
If you are applying for asylum and you want to travel outside the United States, you must receive advance permission before you leave the United States in order to return to the United States. This advance permission is called Advance Parole. If you do not apply for Advance Parole before you leave the country, you will abandon your application with CIS and you may not be permitted to return to the United States. 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.
What happens if my asylum application is denied?
Generally, if you are in removal proceedings and the immigration judge denies your application for asylum, you would file an appeal with the Board of Immigration Appeals. If CIS denies your application for asylum, generally you may not appeal that decision. However, you may reapply if there is a change in circumstances warranting a new application.
How do I get my spouse or children derivative asylum status in the United States?
You may include your spouse or any unmarried children under the age of 21 in your own asylum application if your spouse or children are in the United States. If you have already been granted asylum, you may apply for derivative asylum benefits for your spouse or children. This means that your spouse or children may be granted asylum status based on your own asylum status.
You may apply for derivative asylum benefits for your spouse or unmarried children under the age of 21 within two years of your grant of asylum. If your spouse or children are already in the United States, they may be eligible for derivative asylum benefits regardless of whether they are in the country legally or illegally.
The relationship between you and your spouse and children must have existed when you were granted asylum and must continue to exist when you file CIS Form I-730 (Refugee/Asylee Relative Petition) and when your spouse and children are admitted to the United States as derivative asylees. If your children are outside the United States and have been approved for derivative asylum benefits, your children will be able to come to the United States as an asylee at any time as long as they are under 21, unmarried, and maintain their relationship with you. If your spouse is outside the United States and has been approved for derivative asylum benefits, your spouse will be able to come to the United States as an asylee at any time as long as your spouse remains married to you.
You may apply for derivative asylum status for a child who was already conceived, but not yet born, on the day you were granted asylum. You may apply for derivative asylum status for a stepchild if the marriage between you and the child’s parent took place before the child’s 18th birthday. You may apply for derivative asylum status for an adopted child if the adoption took place before the child’s 16th birthday and the child has been in your legal custody for at least two years. You may not apply for derivative asylum status for your child’s mother unless she was married to you on the date you were granted asylum.
After your spouse or children are admitted to the United States as derivative asylees, they must be granted special permission to travel abroad until they adjust to lawful permanent resident status. They cannot forfeit or give up their asylum status and later be re-admitted to the United States as asylees.
If you have questions about seeking asylum in the United States or need legal advice or help for yourself or a family member filing an asylum petition or appealing a denial of asylum, contact the Atlanta, Georgia immigration attorneys at Brownstein & Nguyen LLC today for a free consultation. We have over 20 years of experience successfully representing clients in all aspects of immigration law. Click here to see what our clients say about our experience and dedication in handling their legal matters.
