Individuals who believe that returning to their home country would endanger themselves physically or mentally may apply for asylum in the United States. A grant of asylum permits the asylee to remain in the United States in valid status with employment authorization incident to status.
The asylee may apply for adjustment of status to permanent resident after living in the United State for one year after the date of the grant of asylum. The waiting period for adjustment of status to permanent resident can take many years due to a limit on the number of asylees who can become permanent residents each year.
An individual is eligible for a discretionary grant of asylum if he meets the definition of a “refugee” in the Immigration and Nationality Act, is eligible for a favorable exercise of discretion, and is not barred for other reasons from obtaining asylum.
Any person who is outside of any country of such person’s nationality or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
The standard for persecution is expansive and encompasses a broad range of acts. Infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim constitutes persecution. Serious human rights violations have been found to be persecution. The threat the applicant for asylum fears must be a country-wide threat. If the asylum applicant could internally relocate in his home country, and thereby escape the threat of persecution, a grant of asylum is not warranted. When an asylum applicant shows past persecution, he meets the definition of a refugee and is eligible for a grant of asylum. A well-founded fear of future persecution is then relevant to the favorable exercise of discretion to grant asylum. An asylum applicant who has not suffered past persecution may still be eligible for asylum based on a fear of future persecution. This fear must be subjectively real and objectively reasonable.
There is a one year filing deadline for asylum applications: the asylum application must be filed prior to the one year anniversary of the applicant’s entry into the United States. There are exceptions to the one year filing deadline: Maintenance of valid status is one of the exceptions to the one year filing deadline. In other words, if the applicant has maintained valid immigration status in the United States, he may apply after the one year filing deadline. Changed circumstances and exceptional circumstances also constitute exceptions to the one year filing deadline.
Political conditions may change in the applicant’s home country and make the filing of the application after the one year deadline necessary.
The affirmative asylum application is filed with the asylum designated service center for the region where the applicant lives and is sent to the regional asylum hearing office. An interview is scheduled and the applicant appears at the hearing to present his case. ASLF attorneys work with the applicant to prepare the asylum case and accompany the applicant to the asylum interview. We also provide extensive interview preparation for our clients. The interview can last for an hour or more. Interpreters are needed if the applicant cannot speak English fluently. The applicant must provide the translator. If the applicant is in status, the decision will be mailed to the applicant within a few weeks of the interview. If the asylum applicant is out of status, the decision must be picked up at the asylum office by the applicant. If an in status applicant’s petition is likely to be denied, a notice of intent to deny is mailed to the applicant. The applicant then has time in which to respond to the notice of intent to deny. If the asylum petition is denied after the in status applicant responds to the notice of intent to deny, the applicant may apply for asylum again. If the out of status applicant’s case is not granted at the asylum office, the applicant is referred to immigration court where the applicant may present his asylum case to the immigration judge.
Once granted asylum, the asylum seeker receives a special stamp in their passport showing they were granted refugee status. This status and the accompanying stamp allows the applicant to work in U.S. legally during the duration of the asylum status and they are not required to have a separate Employment Authorization/ Work Permit. Asylum holders may travel freely before the expiration of their status.
Applicants that were granted Withholding of Removal are required to apply for and to renew their Employment Authorization.
A person granted asylum may apply for adjustment of their status and receive a Green Card after one year of being in asylum status and maintaining good standing (no arrests, no criminal convictions). The application is submitted by filing a USCIS Form I-485 and the payment of the filing fee, together with all supporting documents.
Please note that asylum holders are strongly urged not to visit the country where they experienced persecution as this may be a bar to their receiving permanent residency (the USCIS officer may question the moral character of a refugee who visited the very country which they had to seek asylum protection from).
Submitting an asylum/withholding/CAT application is a highly complicated intricate legal matter. ASLF urges you to consult an attorney before submitting your application. Our office has helped many asylum seekers successfully file Asylum Applications and adjust to permanent residence, alongside receiving withholding of removal and CAT relief. Your case will be handled by an experienced attorney that has knowledge and experience in Asylum law and Country conditions.
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