Asylum may be granted to people who are arriving or already present in the United States regardless of whether they are here legally or illegally. According to U.S. law, a individual may be granted asylum if they can establish a well founded fear of persecution if returned to their home country. This fear must be based on their race, religion, nationality, political opinion, or membership in a particular social group.
U.S. law requires an individual to apply for asylum within one year of their date of arrival into the U.S. This one year filing requirement may be overcome through showing changed country conditions in the country of persecution or exceptional circumstances.
If the one-year filing requirement or the criteria for the waiver of the one-year filing requirement cannot be met, an individual may qualify for withholding of removal. For withholding of removal, an individual must demonstrate that it is more likely than not that they would be persecuted if returned to their home country due to their race, religion, nationality, political opinion, or membership in a particular social group.
The Application for Asylum or Withholding of Removal Form I-589 is filed with the U.S. Citizenship and Immigration Services. The immigration officer will either approve the application or refer it to the Immigration Court if the individual is out of legal status. The asylum application can then be renewed with the Immigration Court. If a Notice to Appear in Immigration Court has already been received, then the application for asylum is filed directly with the Immigration Court that issued the Notice to Appear. This presents the opportunity for the applicant to plead their case before an Immigration Judge who will either grant or deny the application.
An alien who is granted Asylum takes on the legal status of Asylee. This allows him or her to reside in the United States indefinitely as long as the threat of persecution continues. The Asylee’s spouse and unmarried children under the age of 21 included on the asylum application will also receive asylum.
An Asylee may apply for a refugee travel document or advanced parole for travel out of the U.S. Such a benefit should be obtained prior to leaving the U.S., as the Asylee may be denied re-entry upon attempting to re-enter the U.S. Also, an Asylee will risk losing his/her status if he/she travels to the county of alleged persecution. Such action could be considered to be voluntarily availing oneself of the protection of an allegedly persecuting country.
Another benefit available to an Asylee is employment authorization. An Asylum Applicant whose application is pending may apply for employment authorization 150 days after a completed Form I-589 Application has been filed.
Finally, a year after the grant of asylum, the Asylee may petition for adjustment of status to become a permanent resident. This right also applies to the Asylee’s spouse and children.
An applicant who is granted withholding does not receive as many benefits as an Asylee. The individual can seek work authorization, but will not be able to adjust his/her status to become a legal permanent resident or a U.S. citizen. Withholding of removal does not confer any status on the applicant's spouse or children.
Contact Us to start your Personal Immigration Plan Today.