There are two ways to apply for asylum – affirmatively and defensively. Additionally, some individuals seeking the protection of the United States can apply for temporary protected status, or TPS. Please explore the information below to learn about these application processes, and contact us if you have any questions, or if you would like to schedule a consultation.
What is asylum?
Asylum is a protective status that allows people who are in the United States to remain in the country legally because they would be at risk of serious harm if they had to return to their home country. Applicants who apply for asylum with the United States Citizenship and Immigration Services (USCIS) apply affirmatively. Asylum applicants who have been placed in removal (deportation) proceedings by the government and apply for asylum in Immigration Court apply defensively.
Who is eligible to apply?
A person is eligible for a discretionary grant of asylum if he or she has suffered past persecution or has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Persecution is defined broadly. It includes the infliction of harm or suffering by a government or persons a government is unwilling or unable to control. Serious violations of human rights amount to persecution. Persecution may also include severe economic deprivation that threatens an individual’s life or freedom. Cumulative incidents of threats, discrimination, or harassment may also rise to the level of persecution.
There are certain factors that make some people ineligible for asylum, such as conviction of a particularly serious crime. Also, in order to receive asylum an individual must file an application within one year of arriving in the United States. However, someone who is barred from asylum due to a serious crime or a delay in filing may still be able to remain in the U.S. under other protective provisions such as Withholding of Removal under Section 241(b)(3) of the Immigration and Nationality Act, or underArticle 3 of the Convention Against Torture. Individuals who are in lawful nonimmigrant status, or who are without valid immigration status, but have not yet been put in removal (deportation) proceedings, may affirmatively apply for asylum.
Benefits of Asylum Status
Employment Authorization Document
Asylees have unrestricted ability to accept employment in the United States. The ability is incident to status and does not require a separate application. However, many employers require additional proof of employment authorization, and most asylees obtain an employment authorization document (EAD) to show their eligibility to work and to serve as an identity document The first EAD application fee is waived. Subsequent EAD applications must be filed three months prior to expiration of the current EAD.
Refugee Travel Document
Asylees may obtain a refugee travel document for international travel. They must not return to the country from which they sought asylum, nor should they use the passport of that country. Visiting that country or using its passport may result in asylum status termination. Refugee Travel Document applications should be filed at least six months prior to leaving the United States.
Green Card eligibility
Asylees are eligible to adjust to permanent resident status after one year as an asylee. Many of the grounds of inadmissibility that apply to other adjustment applicants are waived for asylees.
Affirmative vs. Defensive Asylum
The affirmative asylum process
The affirmative asylum process begins by submitting Form I-589, Application for Asylum and Withholding of Removal, a supporting statement, and supporting documents to the appropriate USCIS service center. Within three weeks USCIS issues a receipt and interview notice and within six weeks an interview is held at the local asylum office. At the interview the USCIS examiner asks detailed questions about applicants’ statements in an effort to gauge their credibility. The interviewer will also review documents corroborating the applicant’s testimony. It is extremely important that an applicant present all reasonably obtainable corroborating documentation, as failing to do so can result in denial of the application. Applicants who are not fluent in English may bring a translator to the interview. The interview is informal and non-adversarial. Applicants usually receive written notification of the decision within a few weeks of the interview. If Immigration issues a final approval, applicants receive asylee status as of the date on the letter and are entitled to asylum benefits.
Applicants whose background checks have not been completed, or who come from countries where the socio-political situation is changing, may receive a recommended grant of asylum. This is not a final approval, and applicants with recommended grants are not entitled to asylee rights. A recommended grant does entitle the applicant to obtain work authorization.
Immigration Services may also issue a Notice of Intent to Deny (NOID) to applicants in lawful non-immigrant status whose applications are deemed insufficient. The notice indicates the application’s shortcomings and allows applicants an opportunity to respond. Satisfactory responses result in a grant of asylum status. Unsatisfactory responses result in an application denial, and applicants return to their prior status.
Applicants who are out of status and whose applications are deemed insufficient do not receive a NOID. Their applications are referred to the Immigration Court. Referrals initiate removal (deportation) proceedings against applicants. In removal proceedings applicants have the opportunity to present their claim for asylum or other relief during a full evidentiary hearing before an Immigration Judge.
The defensive asylum process
An asylum-seeker begins the defensive asylum process one of three ways: (1) They are referred to the judge by an asylum officer at USCIS after applying affiermatively for asylum; (2) they are placed in removal proceedings for immigration violations and subsequently apply for asylum; or (3) they enter the U.S. at a port-of-entry without proper documents and claim to have a credible fear of persecution or torture. In court, asylum applicants have the opportunity to present their claims during a full evidentiary hearing before the Immigration Judge. During the trial applicants may:
- Testify to events and circumstances surrounding their claim;
- Present witness testimony from individuals familiar with the facts and circumstances surrounding their claim to asylum;
- Present expert witness testimony regarding complex issues in their case, such as country conditions, the willingness and ability of certain governments to protect individuals in the same circumstances as the applicant, and treatment of different races, ethnicities, or genders in the applicant’s country;
- Present documentary evidence, including news articles, human rights reports, affidavits and other statements.
Removal proceedings are adversarial, and the U.S. government, represented by the Department of Homeland Security, is the opposing party. Applicants will be cross-examined on their testimony and documentation. The Immigration Judge can approve or deny applicants’ requests for asylum. If denied, applicants can file an appeal before the Board of Immigration Appeals.
Temporary Protected Status (TPS)
An alternative to applying for asylum is applying for temporary protected status (TPS). TPS is a temporary immigration status granted to eligible nationals of designated countries (or parts thereof). The Attorney General may provide TPS to aliens in the United States who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions.
How does TPS work?
During the period for which a country has been designated for TPS, TPS beneficiaries may remain in the United States and may obtain work authorization. However, TPS does not lead to permanent resident status. When the Secretary terminates a TPS designation, beneficiaries revert to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS. Accordingly, if an alien had unlawful status prior to receiving TPS and did not obtain any status during the TPS designation, the alien reverts to unlawful status upon the termination of that TPS designation.
Who is eligible for TPS?
An alien who is a national of a country (or alien having no nationality who last habitually resided in that country) designated for TPS is eligible to apply for TPS benefits if he or she:
- Establishes the necessary continuous physical presence and continuous residence in the United States as specified by each designation;
- Is not subject to one of the criminal, security-related, or other bars to TPS; and
- Timely applies for TPS benefits. If the Secretary of Homeland Security extends a TPS designation beyond the initial designation period, the beneficiary must timely re-register to maintain his or her TPS benefits under the TPS program.
An alien is not eligible for TPS if he or she:
- Has been convicted of any felony or two or more misdemeanors committed in the United States;
- Is a persecutor, or otherwise subject to one of the bars to asylum; or
- Is subject to one of several criminal-related or terrorism-related grounds of inadmissibility for which a waiver is not available.
How can the Law Offices help you?
Asylum and TPS applications are complex procedures, and applicants should retain an experienced immigration attorney. The attorneys and other staff members of our office work closely with applicants throughout the application process. They assist with the application and help the applicant write a clear and detailed supporting statement. Staff members also compile and summarize news articles, human rights reports, affidavits, statements, and other original documents to support the applicants’ claims. Prior to the interview, an attorney meets with applicants to prepare them for the interview questions. An attorney is also present at the interview to clarify legal issues for applicants and provide a legal summary for the interviewer.
The attorneys at Bromberg, Kohler Maya & Maschler, PLLC have significant experience in representing clients seeking asylum, withholding of removal, and protection under the Convention Against Torture. We have represented asylum seekers in proceedings at all administrative levels, from the initial interview before the USCIS Asylum Office to the Immigration Courts, the Board of Immigration Appeals, and the U.S. Court of Appeals. We have represented clients from a wide variety of countries and backgrounds. In addition, our office has experience with claims for asylum based on all five of the statutory grounds: race, religion, nationality, political opinion, and membership in a particular social group. We have successfully articulated “particular social groups” so as to obtain protection for those fearing female genital mutilation and persecution due to sexual orientation.
The content of this website is meant only to acquaint you with general information about immigration.This information is not legal advice and is not a substitute for having a consultation with an attorney. If you have additional questions or would like to schedule a consultation, please contact us.