The Immigration and Nationality Act (INA) allows individuals entering the United States to apply for asylum if they meet certain conditions. To qualify for asylum you must prove that you have been subjected to persecution or have a reasonable fear of being persecuted due to your race, religion, nationality, political opinion, or membership in a particular social group. Asylum law is very complicated because it is primarily driven by case law established by the Board of Immigration Appeals (BIA) and the federal circuit courts. Satisfying the above requirements for asylum can be very complicated and difficult and it is therefore highly recommended that you seek the assistance of an immigration attorney.
Time Limit to File Asylum Application
It is important to note that you must submit your asylum application within one year of arriving in the United States. However, you may be allowed to file your asylum application outside of the one-year deadline if you can meet one of the exceptions.
The first exception is “changed circumstances.” You must prove that circumstances affecting your eligibility for asylum have occurred and that you have filed your asylum application within a reasonable time of that changed circumstance.
The second exception is “extraordinary circumstances.” You must prove that failure to file the asylum application was due to reasons outside of your control and that you filed your asylum application within a reasonable time of the occurrence of the extraordinary circumstance.
Filing an asylum application outside of the one-year deadline can be difficult and it highly recommended that you seek the assistance of an immigration attorney.
Can I Include Anyone in My Asylum Application?
You can include your spouse and unmarried children under the age of twenty one (21) on your asylum application when you initially file your application or anytime before a final decision is made on your application. However, your spouse and children must be physically present in the United States in order for you to include them in your initial application.
If your spouse and children are not present in the United States, you can petition to bring them to the United States after you have been granted asylum. You can petition for your spouse and children by filing form I-730, Refugee/Asylee Relative Petition. However, you must petition to bring your spouse and children to the United States within two years of being granted asylum. There is no filing fee for Form I-730, Refugee/Asylee Relative Petition.
Affirmative and Defensive Asylum Applications
Obtaining asylum in the United States can be done through two different processes. You can submit either an affirmative or defensive asylum application.
An affirmative asylum application is filed with the United States Citizenship and Immigration Service (USCIS) when you have not been placed in removal proceedings or if you are under the age of eighteen (18). If USCIS denies your application, you will then be placed in removal proceedings and referred to an immigration judge. You can then file another asylum application with the immigration judge. The immigration judge will consider your asylum application a second time and will not consider the fact that it has been previously denied by USCIS.
A defensive application is filed with the immigration judge if you have been placed in removal proceedings. If you are under the age of eighteen (18) and placed in removal proceedings you can file your initial asylum application with USCIS. If you are over the age of eighteen (18) and are placed in removal proceedings you will only be allowed to file your initial asylum application with the immigration judge.
Work Authorization
You can file for work authorization 180 days after you have filed your asylum application if your asylum application is still pending and no decision has been made. You can file for work authorization by filing Form I-765, Application for Employment Authorization. There is no filing fee for the initial Form I-765, Application for Employment Authorization.
When Can I File for Lawful Permanent Residence?
After you have been granted asylum, you must remain physically present in the United States for one year before you can file your adjustment of status applications to become a lawful permanent resident of the United States. Your spouse and children must also have been physically present in the United States for one year before they can file their adjustment of status applications to become lawful permanent residents of the United States.