Who can file?
If an applicant can establish that he/she has suffered persecution or fears that he/she will suffer persecution due to race, religion, nationality, membership in a particular social group, or political opinion, he/she can seek asylum.
Affirmative filing
If the applicant applies for asylum out of his/her own initiative with the U.S. Citizenship and Immigration Services (USCIS), it is called an affirmative filing. The applicant needs to file Form I-589, Application for Asylum and for Withholding of Removal, within one year of his/her arrival to the United States. There is no fee to apply for asylum.
The applicant may include his/her spouse and children that are in the United States on the application at the time of filing or at any time until a final decision is made on the case. To be included, children must be under 21 and unmarried.
Work permit
The applicant may apply for a work permit if 150 days have passed since the complete asylum application was filed and no decision has been made, as long as the delay was not caused by the applicant.
To apply, the applicant needs to file Form I-765, Application for Employment Authorization. There is no fee to apply for the first EAD if the applicant has a pending asylum application or has been granted asylum.
The asylum interview
The asylum interview is conducted by a USCIS officer. If the officer believes the claim, based on the interview and the supporting documentation, and the applicant is eligible, the applicant will be granted asylum.
If you don’t get asylum
Otherwise, the case will be referred to the immigration court system for removal proceedings and the applicant’s I-589 application and supporting documentation will be transferred. An immigration judge will hear the case again as if it had never been filed before, so the applicant will have a chance to present the case as new. The applicant will first have a Master Calendar Hearing where the court will discuss what steps it will take on the case. The applicant can add additional evidence in support of the case by the deadline given and file an amended Form I-589.
If the applicant accepts an expedited removal hearing schedule, the applicant will be given the next available date for a Merits Hearing. Otherwise, it might take a few years to get a Merits Hearing. At this hearing, the applicant will present his/her case, and the Department of Homeland Security attorney will ask questions to determine the honesty of the applicant.
If the case is decided against, the applicant will be deported. Otherwise, the applicant will be granted asylum.
Bringing your family to the United States
If the applicant has been granted asylum, he or she may petition to bring his/her spouse and children (under 21 and unmarried) to the United States by filing a Form I-730, Refugee/Asylee Relative Petition. The petition has to be filed within two years of the approval of the asylum case unless there are humanitarian reasons to excuse this deadline. There is no fee to file this petition.
Filing for permanent residence (Green Card)
The applicant may apply for a green card one year after being granted asylum. To apply for a green card, the applicant will file Form I-485, Application to Register Permanent Residence or to Adjust Status. He/she must submit a separate I-485 application packet for themselves and, if applicable, for each family member who received derivative asylum based on his/her case. The filing fee for Form I-485 is $1,140 but the petitioner may apply for a waiver if he/she can not afford the fee. A biometric service fee of $85 will also be due.
Defensive asylum filing
If the applicant is filing the asylum case for the first time in removal proceedings, it is a defensive asylum filing.
Supporting documentation
- Proper identification such as a passport or government-issued ID.
- A detailed personal statement to show why the applicant should be granted asylum.
- Documents to prove that the asylum case was filed within one year of arrival to the U.S.
- Documents to demonstrate that the applicant belongs to a particular race, religion, nationality, particular social group, or holds a particular political opinion.
- Documents to prove that these groups are persecuted in the country the applicant comes from.
- Documents to prove that the applicant did suffer or has good reason to fear future persecution because he/she belongs to one or more of these groups.
Witnesses
The applicant can present witnesses such as:
- An expert that can speak to the type of persecution that exists in the country the applicant is from.
- Someone that witnessed instances of persecution targeting the applicant according to the claim
- Medical professionals that have examined and determined that the applicant has suffered trauma due to persecution
Hiring an attorney
An applicant should consider hiring a good immigration attorney, preferably from the very beginning to make sure he/she will have the best chance of getting approved because once denied in the immigration court system, the applicant may be deported.