To be eligible for asylum in the United States, a person must first meet the definition of a refugee as established in the Immigration and Naturalization Act.
This means that they have a fear of persecution due to their race, religion, nationality, political opinion, or their inclusion in a particular social group. There are two pathways to obtaining asylum in the US: the affirmative and the defensive process.
To obtain asylum through the affirmative asylum process the person must be physically present in the United States, or along the border at any port of entry.
People can apply for asylum regardless of how they arrived in the US and regardless of their current immigration status. A person can apply for affirmative asylum by submitting a Form I-589, Application for Asylum and for Withholding of Removal, to US Citizenship and Immigration Services (USCIS). To meet the requirements of the affirmative process, they must apply for asylum within one year of when they last arrived in the US, unless they can show:
Once their application has been accepted, they’ll receive notice of receipt and a biometrics services appointment, begin security vetting, and receive the date of their interview where they’ll demonstrate they have credible fear for their safety if removed from the US. The whole process, from application to approval, can typically take about six months.
If after their interview their case is not approved by USCIS, they can still re-apply using the defensive process.
The defensive process is available to asylum seekers who were denied through the affirmative process, or have been detained for removal by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP).
The defensive process works within immigration courts. The judge will hear from the asylum seeker (and their attorney, if they have been able to access representation), and the US government (as represented by an ICE attorney).
If the judge deems them eligible, the applicant will be granted asylum. If found ineligible, the judge can determine whether they meet the criteria for any other forms of relief from removal. Both the applicant and the US government have the ability to appeal the decisions made.
Because the defensive process is housed within immigration courts, it can take considerably longer that the affirmative process. In 2019, the process averaged nearly two years.
Being granted asylum means the recipient is protected from being removed to their home country, and are able to access a number of new opportunities.
Asylees are able to access documentation to work, can receive immigration benefits, and are eventually able to apply for a social security or green card, and US citizenship. A person’s asylum status will never expire, and status can only be terminated by USCIS under very particular circumstances.
Whereas asylum seekers ask for protection directly from within the country, or border of the country, where they hope to remain, refugees seek to secure their safety by being resettled in a third country. Learn the steps individuals must navigate to be resettled as a refugee in the United States.