Asylum is a form of protection to people who are currently inside the United States in order to protect them from persecution in their home countries. It is similar to how a refugee is defined but the difference between the two is that a refugee seeks protection from within his country and an asylum applicant seeks protection from within the United States.
In order to qualify for asylum, a person has to claim that they have been a victim of persecution or that they have a well-founded fear of future persecution based on 5 statutory grounds:
- Membership in a particular social group
- Political opinion
If the person can prove that they have been persecuted or that they have a well-founded fear of future persecution, based on the 5 grounds expressed above, the person can be granted asylum in the United States and will become an asylee. After 1 year of becoming an asylee, the person can apply to become a U.S. Lawful Permanent Resident. While being an asylee, the person can apply to bring his immediate family to the U.S. if they did not enter the Country together.
There are two ways of applying for asylum in the U.S.
- Affirmative Asylum: This refers to when a person enters the United Stated and applies for asylum within the 1st year they enter. You do so by filing with the United States Citizenship and Immigration Services (USCIS) from I-589, Application for Asylum. Once submitted, USCIS will send you a receipt stating that they have received your application and that now you can remain in the United States lawfully until a decision is made on the application. The law also provides for work authorization to be granted to an asylum applicant 6 months after submitting the asylum application to USCIS. An interview with the asylum office nearest to your home address will be scheduled, where a decision will be made on your case. The decision could be either an approval or a referral to the Immigration Court.
- Defensive Asylum: This refers to filing the asylum application for the first time with the Immigration Court. It is called defensive asylum since you will be using the asylum as your defense from removal in the Immigration Court. At this point, the asylum application would be filed with the Court and not with USCIS. It is important to note that if the asylum is filed after 1 year of arriving from the United States, you would have to show either change or extraordinary circumstances that lead to the late filing of the application in order to proceed.
About the Author
Carlos Lorenzo has more than 10 years of experience representing clients in immigration law. He is passionate about helping people find solutions to complex cases. In the last 5 years, he has practiced immigration law exclusively and focuses primarily in removal defense.