Asylum process in USA

It is important to learn how to apply for the asylum process in the USA if you are an immigrant seeking protection and safety in this country.

In this blog you will learn what it takes to apply for asylum in the United States. However, for legal advice on your specific case, we invite you to contact our immigration lawyers in New Jersey.

How To Request And apply for the asylum process in the USA in 2024

To apply for asylum in the United States, it is necessary to file Form I-589, Application for Asylum and Withholding of Removal with USCIS. 

You must submit it within the first year after your last arrival in the country, unless you demonstrate certain circumstances that justify an exception to this deadline.

Applying for the asylum process in the USA is free, so you will not have to pay anything to the government to submit the application. However, there may be costs involved, such as attorney fees.

What is the definition of asylum in the United States?

Many immigrants wonder what asylum is in the United States. In short, this is a form of legal protection granted to national foreigners fleeing certain dangers in their home country. 

Can I apply for asylum in the United States if I am here illegally or have a criminal record?

You can apply for asylum with USCIS regardless of your immigration status. Of course, you must not be under deportation proceedings or submit the application beyond the time limit.

What’s more, you could apply for asylum even if you have been convicted of a crime, but it will depend on the crime committed.

As part of the application process, you must disclose your criminal history on Form I-589. Failure to do so could result in fines or imprisonment for perjury. 

Ways to obtain asylum in the United States

There are three ways to obtain asylum in the United States:

• Affirmative process,
• Defensive process, or
• Through the asylum merits interview following a positive credible fear determination.

That said, we will explain what each of these types of asylum in the United States consists of:

Affirmative asylum

Affirmative asylum in the USA is a process in which an immigrant who is not in deportation proceedings can request asylum from the US government. 

The process begins with the submission of Form I-589 to USCIS. If this agency does not grant asylum, the applicants enter removal proceedings, where they can request defensive asylum at their master calendar hearing.

defensive asylum

Defensive asylum in the USA is a process in which an immigrant who is facing removal proceedings from the United States can request asylum protection before an Immigration Judge.

The judge decides if you qualify for asylum and if that is the case you will be granted asylum. If not, they will evaluate whether you are eligible for another form of protection from deportation. 

Asylum Merits Interview

The asylum merits interview is an evaluation conducted by a USCIS asylum officer to determine whether an immigrant has a credible fear of persecution or torture. 

If the applicant is determined to have a credible fear, USCIS will consider their asylum application, as well as their eligibility for withholding of removal and protection under the Convention Against Torture (CAT).

Difference between types of asylum in the United States

Although the 3 asylum processes are similar, they have their differences. Among them we find:

Affirmative Asylum Processing with USCIS

• For individuals who are not in removal proceedings.
• Form I-589 is filed with USCIS.
• You attend an interview with an asylum officer.
• You must provide your own interpreter.

Asylum Merits Interview with USCIS After a Positive Credible Fear Determination

• For individuals under expedited removal with credible fear.
• Credible fear registration counts as an asylum application. Therefore, it is not necessary to submit Form I-589.
• There is a second interview with an asylum officer.
• USCIS provides an interpreter.

Defensive Asylum Processing with EOIR

• For people under deportation proceedings.
• File Form I-589 with the immigration judge if you do not have one on file with USCIS.
• Hearing before an immigration judge.
• The court provides an interpreter.

How do I know if I am eligible to apply for asylum in the United States?

Generally, you may be eligible to apply for asylum in the United States if you are entering or are already in the country. This will be regardless of your immigration status, as long as you submit the application within the first year of your arrival.

However, you lose your eligibility if you apply after you have been in the US for more than a year. Of course, you may qualify for an exception if you can show that:

• There were significant changes that affect your eligibility for asylum, or 
• If there are extraordinary circumstances that justify the delay in submitting your application.

To request this exemption, it is important to submit it within a reasonable period of time. Call us and we will help you with this procedure. 

Requirements to request asylum in the United States

The main requirement to apply for the asylum process in the USA is that you can demonstrate that in your country of origin you suffered or believe you may suffer persecution due to your:

• Religion,
• Nationality,
• Politic ideology,
• Race,
• Belonging to a social group. 

These are known as the 5 protected grounds to qualify for asylum. If you are a victim of violence in your home, you may be interested in reading our blog “Asylum based on domestic violence”

Who does not qualify to apply for asylum in the United States?

You will not qualify to apply for asylum in the United States if you:

• Are not physically present in the country at the time of application.
• Apply after you have been in the US for more than a year, unless you can justify your delay.
• Have had a previous application for asylum denied by an immigration judge or the Board of Immigration Appeals, unless there are significant changes in circumstances that affect your eligibility.
• May be removed to a safe third country under a bilateral or multilateral agreement.

For more information, do not hesitate to consult with our immigration law firm in New Jersey. 

How to qualify for an exception to the time limit to file an asylum application?

You may still be able to file an asylum claim if you have passed the time limit. To do this, you must demonstrate that there were changes in circumstances or extraordinary circumstances. Below, we detail it:

Changes in circumstances

Changes in your circumstances involve:

• Significant changes in the conditions of your country of nationality or your country of habitual residence (in the case you are a stateless person), or
• Changes that significantly affect your eligibility for asylum. For example, any modification in the applicable immigration law or risky activities outside the country from which you fear persecution.
• If you were previously included as a dependent on another person’s pending asylum application and a change in the relationship occurred. Some examples include divorce, death, or loss of the parent-child relationship.

Extraordinary circumstances

Among the extraordinary circumstances, we find:

• Serious illness or mental or physical disability. This includes after-effects of persecution or violent harm suffered in the past during the first year after arrival in the US.
• Legal disability. For example, being an unaccompanied immigrant minor or having mental disabilities.

Ineffective legal assistance

Individuals who have had ineffective legal assistance from an attorney may also qualify for an extraordinary circumstance exception. However, they must comply with the following:

• Have a detailed affidavit regarding the agreement with your attorney and any complaints filed with the appropriate disciplinary authorities.
• Have had TPS, nonimmigrant status, or temporary parole for a reasonable period of time before applying.
• Having submitted an asylum application within a year, been rejected by USCIS due to errors, and resubmitted after correcting them.
• The death, serious illness or incapacity of your legal representative or a close member of your family.

How long does the asylum process take in the United States?

Typically, the duration of the asylum process within the USA is 180 days (6 months) after filing. This time is known as the asylum clock.

Please note that this period may be affected by several factors, such as:

• Delays in the process, 
• Staffing, or budget problems at a specific service center, and 
• The type of asylum you are requesting. 

The process of requesting asylum in the USA takes a while. So we recommend being patient. Don’t hesitate to call us if you have questions or concerns.

How has US asylum changed in recent decades?

United States asylum policy has changed significantly in recent decades. This is summarized in the following:

• The Refugee Law of 1980 began a series of controversies and changes. 
• In the 1980s and 1990s, access to asylum was restricted and stricter procedures were put in place. 
• Under the presidencies of George W. Bush and Obama, there were attempts at comprehensive reform and an increase in deportations. 
• During the Trump administration, harsh policies were implemented, such as “zero tolerance” and the Migrant Protection Protocols. 
• Under the Biden administration, some restrictions have been rolled back, but there have also been new restrictive policies and a focus on legal immigration. 
• Recent actions include the expansion of TPS and the creation of temporary stay programs for countries such as Cuba, Haiti, Nicaragua and Venezuela. 

How can I get a work permit if I have asylum in the United States?

To obtain an employment authorization in the United States, you need to file Form I-765, Application for Employment Authorization with USCIS. However, you should take into account whether it is submitted during or after your asylum application.

Apply for a work permit during your asylum application

To apply for a work permit during the asylum application process, you must file Form I-765 after 150 days have passed since you filed your asylum application. 

Please note that you will not be eligible to receive a work permit until at least 180 days have passed since you started your asylum application.

Apply for Employment authorization Once asylum is granted

If you are granted asylum, you are automatically authorized to work. Some asylees choose to obtain an EAD for identification purposes, although it is not necessary if you already have asylee status. Note that:

• If you are denied asylum, your employment authorization will end when your EAD expires or 60 days after the denial of your asylum claim, whichever is later. 
• If your asylum application is referred to an immigration judge for further consideration and you have a current EAD, it will remain valid until its expiration date, unless you renew it. 
• If an immigration judge denies your asylum request, your employment authorization will end on the expiration date indicated on your EAD, unless you appeal. 

You may be eligible for employment authorization if you have valid immigration status, such as temporary parole or temporary protected status.

How to request asylum in the United States for my relatives?

If you are granted asylum, you may bring your spouse and children by filing Form I-730, Petition for Refugee/Asylee Relative. 

However, to include your children in the application, they must be under 21 years old and unmarried.

It is important to file within 2 years of the date you are granted asylum, unless there are humanitarian reasons that justify an exception. You do not have to pay any fee to file this petition.

How to apply for a Green Card after Obtaining asylum in the United States?

One year after receiving asylum approval, you may be eligible to obtain a lawful permanent resident card. 

To apply, complete Form I-485 to adjust status. You will need to submit a separate Form I-485 package for yourself and, if applicable, one for each member of your family who has received derivative asylum based on your case.

For further information, check our blog “How to get a Green Card” or contact our lawyers Curbelo or Lieberman. 

What is the application to request political asylum in the United States?

The application to request asylum in the United States is CBP One. Its use is mandatory and exclusive to schedule appointments at entry points on the southern border. The process to use CBP One is as follows:

1. Download the app from the App Store or Google Play Store on your mobile device.
2. Once installed, select the “Login or Register” option, which will take you to login.gov, where you can create a new account or access an existing one.
3. At login.gov, choose “Create an account,” enter your email, accept the terms of use, and click “Submit.”
4. Then, verify your account by checking the email received from login.gov and follow the link provided to complete the verification.
5. Once your account is verified, return to the CBP One mobile app.
6. Select “Login or Register”, read and accept the terms and conditions.
7. Proceed to log in using login.gov.
8. Enter your email address and the password associated with the newly created account.
9. Next, select “Sign in.”
10. Authenticate the login using the method chosen to verify the login.gov account.

For further guidance on how to apply for asylum in the United States using the CBP One application, please do not hesitate to contact us.

What should I do after applying for asylum with the CBP One application?

Once you have scheduled your appointment at CBP One, you will need to show up at the designated port of entry on the date and time indicated, carrying your confirmation number. 

During the appointment, CBP officers will review your application and make one of the following decisions:

• Notice to Appear: You will be given this notice under removal proceedings before an immigration judge. Of course, you can request defensive asylum during the hearing or be released while waiting for your court hearing.
• Expedited Removal Procedures: Your case may be referred to a USCIS asylum officer for a credible fear evaluation. Under this process, immigration officials make quick decisions about your deportation.

It is advisable to seek legal advice throughout this process to fully understand your rights and available options.

Who can request asylum at the United States border?

Immigrants can apply for asylum at the United States border if they have a valid visa to enter the United States or have received travel authorization under parole status. 

For those who do not have authorization to enter and wish to request asylum at the border with Mexico, they must schedule an appointment using the CBP One application.

Lawyers by your side throughout the entire Asylum Process In The USA

Knowing how to apply for asylum in the United States can be complex. If you are looking for reputable immigration attorneys in New Jersey, at the Curbelo Law firm in Ridgewood you can get complete legal assistance.

We have more than 10 years of experience in immigration cases, so we will be with you throughout this process. 

We will analyze your case and determine your opportunities to remain in the United States through asylum.

Call today so our professionals can assist you and begin analyzing your case in depth.