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Asylum in the United States

This month, we will be taking a look at the process of Asylum in the US.

Every year, thousands of people apply for asylum in the United States. Asylum seekers, as well as family members, can work in the US while their case is pending. Those granted asylum can apply to live in the United States permanently and gain a path to citizenship. They can also apply for their spouse and children to join them in the United States.

What is Asylum?

According to the United Nations Refugee Agency, “[a]sylum is a form of protection which allows an individual to remain in the United States instead of being removed (deported) to a country where he or she fears persecution or harm. Under U.S. law, people who flee their countries because they fear persecution can apply for asylum. If they are granted asylum, this gives them protection and the right to stay in the United States.”

The United Nations 1951 Convention and 1967 Protocol define a refugee as “a person who is unable or unwilling to return to his or her 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.”

What are the bases for requesting asylum in the US?

An asylum application in the US must be based on: race, religion, nationality, political opinion, membership in a particular social group, or Torture Convention. The Torture Convention, or “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

What’s the difference between affirmative, defensive and expedited asylum?

  • Affirmative Asylum: A person who is not in removal proceedings or who has been designated as an unaccompanied child may affirmatively apply for asylum within one year from his or her arrival in the U.S. based on the options listed above. If the asylum request is granted, the applicant will be able to adjust his or her status becoming a Legal Permanent Resident (LPR) or green card holder. U.S. Citizenship can be obtained after 5 years as an LPR. If the asylum request is denied, the applicant may renew the request for asylum through the defensive process and appear before an immigration judge.

  • 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 the Department of Justice. In this case, asylum is considered a defense against removal from the U.S.

  • Expedited Asylum: A person taken into custody within 14 days of entering the United States who is placed into “expedited removal” proceedings may be put through a new process started in 2022 which allows a USCIS asylum officer to review and adjudicate their asylum claim before they are placed into formal removal proceedings. Individuals put through this process who are denied asylum are referred to the immigration court for removal proceedings and further expedited hearings on their asylum application.

How can an asylum petition lead to a work permit?

Under current USCIS guidelines, asylum seekers must wait 150 days from the date the asylum request was filed to be able to request a work permit and file form I-765. After a subsequent 30-day period (totaling 180 days), the asylum seeker becomes eligible to receive an EAD (Employment Authorization Document). In 2022, due to ongoing litigation in connection with AsylumWorks v. Mayorka, the wait time was changed from one year to the current 180-day period.

What do I need to prove I have an asylum case?

You will need: a statement letter or sworn affidavit describing in detail why you qualify for asylum, affidavits of support from at least three witnesses, and any other type of evidence you might have including but not limited to police reports, letters from government officials, pictures, text messages, news articles.

I would like to seek asylum in the U.S. What should I do next?

The next step is to contact us and schedule a one-hour consultation (in-person or virtual) with one of our immigration attorneys to review your case and supporting documentation. We offer consultations in English, Portuguese and Spanish. During this initial consultation, we will analyze your case and decide whether you have a case or not, inform you how strong or weak your case is, what additional documentation you will need, and total wait time and cost.

If you are ready to talk to us about your case, you can schedule a consultation by clicking on the Book Online button on the upper right hand side of your screen, by visiting our website, by calling us at 385-334-4030 or you can find us on WhatsApp at 385-285-0054. You can also check us out on Facebook and follow us on Instagram @learimmigration @learlaw_espanol @lear_law.


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