Asylum: 9 Key Things About Political Asylum to the U.S.
Asylum, also known as political asylum, is governed by international laws and treaties along with federal law. Each year, tens of thousands of people receive asylum status in the country. In fact, since World War II more asylee seekers have been welcomed into the United States than any other country in the world. However, each year there are always more applicants than there are available visas.
1) Who Can Apply for Asylum?
Asylum applies to individuals that are currently in the United States. Presence in the country is the biggest difference between asylum and refugee status, which requires the person to be outside the country. To apply for asylee status a person must establish that he or she has suffered persecution or has a substantial fear that he or she will suffer persecution due to the person’s race, religion, nationality, membership in a particular social group, or because of the person’s political opinion. One of these factors needs to be established to obtain a humanitarian based visa.
2) When Should a Person Apply for Asylum?
A person should apply as soon as possible. However, the applicant must file the petition within 1-year of the person’s arrival in the United States.
3) Is Work Authorization Available for Asylum Seekers?
A person cannot file for work authorization at the same time as the asylum petition. Instead, work authorization is available only for individuals whose petition has been pending for 150 days excluding delays caused by you. Once the petition is granted you may begin working immediately.
4) Who is barred from Applying for Political Asylum Status?
Asylee status is unavailable for anyone who has:
- Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion
- Been convicted of a particularly serious crime
- Committed a serious nonpolitical crime outside the United States
- Poses a danger to the security of the United States
- Firmly resettled in another country prior to arriving in the United States
Aside from these 5, a person cannot apply for political asylum if they have unsuccessfully sought asylee status in the past unless he or she can establish that there are changed circumstances from the previous filing. Also, USCIS will deny the petition if there is a 3rd country that will take the person.
5) What is Affirmative Asylum?
Asylum law in the United States is comprised of affirmative asylum and defensive asylum. Affirmative asylum is available to a person who is living in the United States and files a petition within 1-year of arriving in the country unless exceptional circumstances caused the delay. If USCIS denies the affirmative petition an immigration judge will review your petition. While the petition is pending, you are authorized to stay within the country.
6) What is Defensive Asylum?
Unlike affirmative asylum, defensive asylum is available to someone who is currently in removal proceedings. In this circumstance, the petition is used as a defense against the removal proceedings. Therefore, individuals seek defensive asylum only after being caught while undocumented or after a judge denies a previously filed affirmative asylum petition.
The defensive asylum procedure operates much like a criminal proceeding or any other adversarial hearing where you are represented by your attorney and the government is represented by an attorney from I.C.E. while the judge decides the law and facts. After the defensive asylum hearing, the judge will either grant asylum, some other form of relief or will order you to be removed from the country. The government or you can appeal the ultimate ruling by the immigration judge.
7) What are the Possible Outcomes of an Asylum Petition?
After filing, USCIS can rule in one of the following ways:
- Grant the Petition
- Refer the Case to an Immigration Court
- Recommend Approval
- Give a Notice of Intent to Deny
- Give a Final Denial
Each one of these rulings has a different outcome requiring a particular response by the asylee. That is why it is imperative to retain an experienced immigration attorney as soon possible.
8) Can a Person on Asylum Receive a Green Card?
The ultimate goal of an asylee is permanent resident status. A person granted a visa can apply to adjust status to a green card holder 1-year after receiving status. After adjusting status an asylee is eligible to file for naturalization 5 years after receiving his or her green card.
9) Can a Person on Asylum Bring His or Her Family to the U.S.?
An asylee can bring his or her family to the United States once USCIS grants the petition. A person can bring his or her spouse and children that are unmarried and under 21. Children that are married or that are over 21 years old must file and receive status on their own.
Seeking a humanitarian based visa to the United States is a very difficult process. Not only are the number of visas available each year for asylees is never enough to cover the demand but a significant amount of proof must be provided establishing their qualifications. Attempting to navigate the process on your own is never a good idea. We have the knowledge and experience to help you gain a humanitarian based visa. Contact us today to discuss how we can help.