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Affirmative and Defensive Asylum

Asylum is a form of humanitarian relief that the U.S. grants to individuals who cannot return home out of fear of persecution for any of the following reasons:

  • Nationality
  • Race
  • Membership in a social group
  • Religion, or 
  • Political opinion

Rights After Obtaining Asylum

Asylum rights are very limited while an application is pending. Although applicants who have not obtained a determination may live in the U.S., they do not have a right to work or obtain government benefits. However, the following rights may be obtained immediately once asylum status is granted:

  • Derivative asylum for your spouse and children that were included in your asylum application and physically present in the U.S. Your spouse must have been married to you before being granted asylum and your children must be unmarried and under the age of 21. 
  • You may obtain asylum for immediate family members who are not in the U.S. by completing a Form I-730 for each family member.
  • Refugee Resettlement Agencies provide assistance to asylee’s and their families, which can include living expenses or housing assistance, job training and placement services, as well as counseling. 

Work Authorization Under Asylum Status

Asylum applicants may not apply for permission to work concurrently or at the same time that they apply for asylum. Applicants granted asylum may work immediately after being granted asylum. Applicants who have not received a determination must wait 150 days after filing their asylum applications before filing for work authorization on a Form I-765Employment Authorization application. Additionally, any delays caused by the applicant will not count towards the 150 days. 
Applicants granted asylum do not need to obtain employment authorization documents, but many do so for the convenience of having them. 

Permanent Resident Status and Asylum

One year after being granted asylum, the asylee may apply for lawful permanent residence (green card). The asylee must file a Form I-485 for him or herself. If the asylee wishes to obtain green cards for derivative family members, each family member who was granted derivative asylum must file a separate Form I-485.   Work and travel documents may be filed simultaneously for each applicant, but note that travel outside the US must only take place if the travel document has been issued AND should not include travel plans to the country of origin from which the asylee perceived a threat.

Affirmative Asylum

Asylum may be used to gain lawful immigration status prior to removal proceedings, this is known as Affirmative Asylum. 
The procedure for affirmative asylum begins after the applicant has arrived in the U.S. The applicant must file a Form I-589. Once the form is completed and sent off to USCIS the applicant will receive an acknowledgement that the application was received and will be required to undergo fingerprinting and background security checks. Next, the applicant will obtain a notice with a date for an interview with an asylum officer. According to USCIS most interviews are scheduled within 43 days after USCIS obtains the Form I-589. 

Although the asylum interview is non-adversarial, the interviewer will be trying to determine whether the applicant truly qualifies for asylum status. The asylee may be represented by an attorney during the asylum interview. Applicants also have the right to bring witnesses to testify on their behalf. 

Asylum determinations are generally rendered between 2 weeks to 2 months. Although in some situations determinations are delayed longer.   

Affirmative Asylum may only be granted within one year of the date of the applicant’s last arrival in the U.S. unless the applicant can prove either extraordinary circumstances delayed the filing, changed circumstances materially affected eligibility for asylum and considering those circumstances the applicant filed in a reasonable amount of time. Another exception for the timely filing rule is if an applicant can prove that is more likely than not that they will be tortured if returned to their country. 

If your application for affirmative asylum is denied USCIS will forward your case to an immigration judge. The immigration judge will conduct a new hearing and render an independent asylum decision. If USCIS does not have jurisdiction over the case an immigration judge will conduct an asylum only hearing. 

Defensive Asylum

Asylum may also be used as a defense in removal proceedings. A defensive application may be processed in one of two ways:

  1. The individual was determined ineligible for asylum at the end of their affirmative asylum application, and the applicant’s case is referred to an Immigration judge, or
  2. The individual was placed in removal proceedings because of being apprehended in the U.S. or U.S. port of entry without proper documents or in violation of their immigration status. Or, the applicant was caught by U.S. Customs and Border Protection (CBP) while trying to enter the U.S. without proper documentation and was determined to have a credible fear of persecution or torture by an Asylum Officer. 

Defensive asylum proceedings are adversarial, like those of court proceedings. The individual may be represented by an attorney or may represent himself or herself, the U.S. government will be represented by an attorney from Immigration and Customs Enforcement. 

After the hearing the immigration judge will decide whether the individual is eligible for asylum or other forms of relief if the individual is not eligible for asylum.