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Asylum
Asylum is a protection grantable to foreign nationals already in the United States or arriving at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to their home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980. Asylum is technically a “discretionary” status, meaning that some individuals can be denied asylum even if they meet the definition of a refugee.
Asylum
Asylum Application Process
There are two primary ways in which a person may apply for asylum in the United States: affirmatively and defensively. A regulation issued in 2022, referred to as the Asylum Processing Rule, created a third pathway for some individuals arriving from the border which includes elements of both affirmative and defensive asylum processes, on an expedited timeline.
Asylum
Affirmative Asylum
A person who is not in removal proceedings (or a person who has been designated as an “unaccompanied child,” even if in removal proceedings) may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, he or she is referred to the immigration court for removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge.
EB-3 Visa
Defensive Asylum
A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR). In other words, asylum is applied for as a defense against removal from the U.S. Unlike the criminal court system, EOIR does not provide appointed counsel for individuals in immigration court, even if they are unable to retain an attorney on their own.
EB-3 Visa
Asylum Processing Rule
Since May 31, 2022, some individuals entering the United States are being processed under an interim final rule. These individuals are first put in expedited removal and if they express fear of persecution or torture, are given a credible fear interview, a process that initiates a defensive asylum claim.
Yes. Every individual who applies for asylum will be subject to a series of background/security checks. You will not have to complete any additional steps to complete your background/security check once you have submitted your Form I-589 and have had your fingerprints taken. Depending on the results of these mandatory checks, you may not be eligible for a final grant of asylum. Your application may be referred to immigration court for removal proceedings.
The background/security check consists of the following:
- USCIS may send a copy of your Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Department of State.
- USCIS sends your biographical information to the Federal Bureau of Investigation (FBI).
- USCIS checks your biographical information against law enforcement databases.
- USCIS schedules you, if you are between 12 years and 9 months of age and 79 years of age, for fingerprinting at an Application Support Center or Designated Law Enforcement Agency. The fingerprints are sent to the FBI to conduct background/security checks and enrolled in the DHS Office of Biometric Identity Management’s (OBIM) Automated Biometric Identification System (IDENT). The asylum offices uses OBIM to verify the identity of the applicant at the time of the interview.
Applicants 12 years and 9 months of age and older receive a notice to go to an Application Support Center or authorized Designated Law Enforcement Agency to have their fingerprints taken. After the USCIS Service Center receives your completed Form I-589, you will be sent a notice to go to an Application Support Center or authorized Designated Law Enforcement Agency to have your fingerprints taken. You are exempt from the fingerprint or biometric fee. The fingerprints will be sent to the Federal Bureau of Investigation (FBI) for a background/security check. The FBI will send those results to USCIS. Additional information about the fingerprinting process can be found on the Fingerprints webpage below, or by calling the USCIS Contact Center at 1-800-375-5283.
Do not submit a completed fingerprint card (FD-258) or fingerprint fee with your application. Your application will be accepted without the fingerprint card attached. If you submit a completed fingerprint card with your application on or after March 29, 1998, the card will be rejected and you will be re-fingerprinted by USCIS.
You will receive a Final Denial of your asylum claim if you received a Notice of Intent to Deny (NOID) and either did not provide a response to the letter within 16 days, or the asylum officer determined that the evidence or argument you provided failed to overcome the grounds for denial as stated in the NOID.
You will have asylee status. You will receive an I-94 Arrival and Departure record documenting that you are able to remain indefinitely in the United States as an asylee. You will be authorized to work in the United States for as long as you remain in asylee status. You may obtain a photo-identity document from USCIS evidencing your employment authorization by applying for an Employment Authorization Document (EAD). You will also be able to request derivative asylum status for any spouse or child (unmarried and under 21 years of age as of the date you filed the asylum application, as long as your asylum application was pending on or after Aug. 6, 2002) who was not included as a dependent in your asylum decision and with whom you have a qualifying relationship. This means that you will be able to petition to bring your spouse and/or children to the United States or allow them to remain in the United States indefinitely incident to your asylee status.
Asylees are eligible to apply for certain benefits, including an Employment Authorization Document (EAD), an unrestricted Social Security card, cash and medical assistance, employment assistance, and a Refugee Travel Document. For more information on the benefits and responsibilities associated with asylee status, see see the Asylum webpage
You will receive a Notice of Intent to Deny if you are currently in valid status and found ineligible for asylum. You will have 16 days to provide a response to the letter. The asylum officer will then either approve or deny the claim.
Before passage of the Real ID Act of 2005, applicants who were found eligible for asylum based on past persecution or a well-founded fear of persecution solely on account of resistance to a coercive population control (CPC) program were subject to a 1,000-per-year statutory limit on grants of asylum based on CPC, and were given a conditional grant until a final approval authorization number became available within the annual 1,000 cap. Section 101(g)(2) of the Real ID Act of 2005 eliminated this annual 1,000 cap, and asylum offices have been issuing final, as opposed to conditional, asylum approvals to new, qualified applicants whose asylum claims are based solely on CPC, as well as to applicants who had previously received a conditional grant, provided that they clear background check requirements and otherwise qualify for asylum status.
This means that the asylum officer was unable to approve your asylum application and you are not currently in valid status. You will receive charging documents that place you in removal proceedings in Immigration Court. Your asylum application will be referred to the Immigration Court for an Immigration Judge to decide during the removal proceedings.
As of Aug. 25, 2020, USCIS is no longer issuing recommended approvals. Before Aug. 25, 2020, you may have received a recommended approval of asylum if an asylum officer made a preliminary determination to grant you asylum, but USCIS had not received the results from the mandatory, confidential investigation of your identity and background. If you have received a recommended approval, and if the results reveal derogatory information that affects your eligibility for asylum, USCIS may deny your request for asylum or refer it to an immigration judge for further consideration.
Yes. Your asylee status may be terminated if you no longer have a well-founded fear of persecution because of a fundamental change in circumstances, you have obtained protection from another country, or you have committed certain crimes or engaged in other activity that makes you ineligible to retain asylum status in the United States. See INA § 208(c)(2). An asylee is not a lawful permanent resident. You may apply for lawful permanent resident status after you have been physically present in the United States for a period of 1 year after the date you were granted asylum status. See Asylee Adjustment for more information about becoming a lawful permanent resident. The law can be found at INA § 209(b).