Asylum is the protection granted to foreign nationals who feel they cannot return to their native country. Seeking asylum is often confused with requesting refugee status, however, one main difference is that an individual who is requesting asylum is already in the country at the time of their request.
The two ways of obtaining asylum in the United States are through the process of affirmative asylum application and defensive process. In most cases, asylum is requested because an individual feels they would be in some form of mortal danger if they were to return to their country. Common reasons individuals seek asylum in the U.S. are fear of being killed by their own government, or persecuted due to their race, social status, personal, political or religious beliefs. Also, when an individual is placed in deportation proceedings he or she can file for asylum as a defense to removal.
Affirmative Asylum Processing With USCIS
To qualify for asylum, an applicant must prove that
- he/she is unable or unwilling to return to their home country
- because of persecution or an objective reasonable fear of persecution
- on account of
- nationality, and/or
- membership in a particular social group or
- political opinion.
To establish a well-founded fear of future persecution the alien must show he has a subjective fear of persecution and that the fear has an objective basis. Well-founded fear of prosecution is defined as if a reasonable person in his/her circumstances would fear persecution of returned to their native country.
Individual wishing affirmatively file for asylum should submits Form I-589 to USCIS. The application for Asylum should be filed within one year from the date of the last arrival in the United States. The date of arrival is counted as day zero. So if an applicant who arrives to the U.S. on December 25, 2013, leaves on January 15, 2014, and then comes back on March 9 , 2104. The one year period begins for such person on March 9, 2014. The petition filed on March 9, 2015 will be considered timely filed. The application is considered filed when it is received by USCIS. However, it could be considered timely if there is proof that the application was mailed timely.
Exceptions to the One-Year Rule.
(1) existence of extraordinary circumstances related to filing delay, e.g.
- country conditions have changed
- serious illness
(2) Maintaining of TPS, lawful status or parole
Maintaining lawful immigration status during at least part of the one-year period. Filing within reasonable time will pass the test. So F-1 student who attend the school may file after one-year dead-line. On the other hand, a student who never attended school does not qualify under this exception.
(3) Ineffective assistance of counsel.
If a person who filed for asylum is in non-immigrant status and the asylum is denied while the petitioner is still in valid status, the petitioner may continue to stay in the U.S. The case will be not forwarded to the immigration court. The person can also adjust his or her stratus while asylum application is pending .
The decision to grant or refer case to an immigration judge is not appealable but it may be renewed in an immigration court.
At 150 days from filing an asylum application an applicant may apply for employment authorization.
Children of persons who filed or asylum or are in a process of applying for asylum may obtain derivative asylee or refugee status. There are three ways of doing it:
- First, the child can be included in the parent’s asylum or refugee application if the child is under 21 years old at the time of filing the application. The child will remain a derivative of his parent status even when she turns 21 provided the child was under 21 when the asylum or refugee application was filed.
- The parent also can adds the child’s name to the previously filed application before it is adjudicated if the child was under 21 at the time of filing and the child is in the U.S.
- The parent can file a Form I-730, Refugee/Asylee Relative Petition, within two years of being granted asylum or admitted to the United States as a refugee for a child who is residing outside of the U.S.
So, derivative child named in the application will retain classification as a child for purposes of the initial asylum or refugee determination, for any subsequent Form I-730 Refugee/Asylee Relative Petition, Adjustment of Status, and for the section 209 adjustment.
Referrer to http://www.refworld.org/ and http://www.unhcr.org/cgi-bin/texis/vtx/home as a source of information about refugee problems worldwide.
Working without authorization.
Working without authorization does not prevent someone from being granted asylum, withholding, or CAT relief, and no waiver is needed. Asylees adjust status through INA § 209, not INA § 245, so the bars to adjustment listed in section 245 do not apply to asylees adjusting status. Section 209 also lists certain grounds of inadmissibility.
Nonimmigrant Status and Asylum Application
If an asylum applicant was maintaining a valid nonimmigrant status at the time of filing the application, and asylum is denied before the NIV status expires or the applicant obtains and extension of nonimmigrant status while the asylum application is pending, the applicant is restored to nonimmigrant status and he will not be placed into proceedings in immigration court.
The filing of asylum application doers not by itself extend nonimmigrant status. However, if nonimmigrant status lapses during the pendency of the asylum claim, it may be a "technical" violation through "no fault of his own," to allow the person to adjust status as long as the application is still pending and has not been referred to immigration court.
For example, the noncitizen filed an asylum application while she was still in nonimmigrant status. That status expired while the asylum application was pending. The asylum officer then referred the asylum application to the Immigration Court. Noncitizen wins the immigration lottery. Once the DHS acted on the respondent’s asylum application by referring it to the Immigration Court, the respondent could not be considered out of status “for technical reasons.” Because she is put of status, she cannot adjust her status in the US.
Let's look at a different scenario. She won her green card while the asylum application was still pending and she seeked to apply for adjustment of status until the case referred to immigration court.
If you have reasonable fear of returning to your home country and want to apply for asylum please contact us as soon as you can.
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