What is asylum?
Asylum is a legal protection that allows an alien to remain in the United States instead of being deported to a country where he/she fears persecution or harm or a country designated by the Immigration Judge (IJ).
Under the law of the United States, people who flee their countries because they fear persecution can apply for asylum. If they are granted asylum, this gives them protection and the right to remain in the United States. Those whose applications are approved are called Asylees.
Types of Asylum in the United States.
Affirmative Asylum: Affirmative asylum is considered a “regular” asylum case. The Applicant is required to be physically present in the United States, usually after the alien has been admitted into the United States.
The application is statutorily required to be filed within ONE YEAR of being admitted into the United States. For example, if an alien is admitted into the United States on August 20, 2022.
If he/she has a ground or has grounds of asylum, the application must be filed between August 20, 2022 and August 19, 2023 otherwise the one-year filing deadline alone can cause the denial of the application unless the Applicant can convincingly rely on one or some of the exceptions to the one-year filing deadline which include: Changed Circumstances: Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; or Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk.
In the case of an applicant who had previously been included as a dependent in another applicant’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.Change in Country Conditions (of the alien)Change in the Applicant’s Circumstances. Extraordinary Circumstances etc.
Defensive Asylum: Unlike affirmative asylum, defensive asylum occurs when the alien is in removal proceedings. Removal proceedings are a deportation process whereby the alien being made to go through a process of being deported. If the alien then files asylum to defend himself/herself, the asylum application is what is referred to as defensive.
Asylum application typically turns defensive if one of the following situations occurs: Person claims asylum at the border; the applicant applied for affirmative asylum first, and the application was not approved, after which the applicant was placed in removal proceedings; immigration officials place the individual in removal proceedings for immigration violations (typically no documents or overstay); the individual tried to enter the U.S. without proper documents, and a U.S. CBP officer determines there are reasons to believe that the person’s life or safety is in danger.
This is validated by going through what is called the Credible Fear Process. In immigration court, if the asylum seeker is also asking the court not to deport him/her on the ground of Withholding of Removal and/or relief under the Conventions Against Torture Act (CAT), one-year filing deadline will not apply to those grounds. Generally, the applicant must submit I-589, Application for Asylum and Withholding of Removal. There is no government’s filing fee to apply except attorney’s fee, if the applicant can afford to engage one.
Who is Eligible to Apply for Asylum in the U.S?
Anyone who falls under the criteria established in the definitions of persecution or has a well-founded fear of persecution may apply for asylum while being present in the United States. They can include their spouses and unmarried children under 21 as derivatives in their applications. The grounds for asylum are: Race, Religion, Nationality, Membership in a particular social group, and, Political opinion.
Asylum Seeker is entitled to Employment Authorization Asylum seekers and their derivatives (who are parts of the application) may be eligible to obtain Employment Authorization Document (otherwise known as “Work Permit”) based on a pending asylum application. However, you cannot apply for work permit until after the asylum application has been pending for 150 days.
You are not eligible to receive work permit until your asylum application has been pending for at least another 30 days, for a total of 180 days, commonly referred to as the 180-Day Asylum EAD Clock. If you cause or request delay within the 150 days, the clock will stop counting.
While the asylum application is pending with USCIS or the immigration court, you (and your derivatives) may continue to renew work permit. If the asylum application is approved, you may still continue to renew the work authorization as long as you want provided there are no other bars. After USCIS or Immigration Court Approves Asylum Application
Once USCIS (after interview) or the immigration court (after hearing) approves an asylum application, the applicant is bestowed with the privilege to live and work in the United States as long as he/she qualifies as an asylee. They can choose to work by renewing work authorization.
They also have access to healthcare assistance through the Office of Refugee Resettlement. An asylee who has an immediate family member outside the United States (spouse and/or children under 21 years) may petition to make the immediate family members come to the U.S as derivatives through a process colloquially often called a “follow-to-join”.
An asylee can choose to adjust status to become a Permanent Resident (Green Card holder) after having been an asylee for one year and physically present in the United States.
Though, approval of asylum in the United States does not expire; however, USCIS may terminate asylum status if the beneficiary no longer has a well-founded fear of persecution because of a fundamental change in circumstances; Obtained protection from another country; Obtained the original asylum grant through fraud; and, Committed certain crimes or engaged in other activities that make him or her ineligible to retain asylum in the United States.
