Across the globe there are people in need of protection. Those who are living in countries where they are in fear of persecution or violence may choose to seek asylum in a safe place. Both international and domestic laws provide protections for asylum seekers. Asylum is a protection granted to a foreign refugee who is afraid to stay or return to his or her homeland. Those facing fears of this type are allowed to legally seek shelter in the United States. A knowledgeable immigration attorney will help you through the application process.
Asylum and Refugee Status: What is the Difference?
Asylum seekers and refugees are people that are looking for protection in the United States. An asylum seeker is a person who claims to be a refugee but has not yet had their claim reviewed. An asylum seeker remains so until their application has been approved. An asylee is a person who is already located in the United States.
A refugee is a person who is located outside the United States. A refugee is also someone who is of humanitarian concern due to persecution, violence, or a threat of violence in their home country. A refugee must not be firmly resettled in another country and must be admissible to the United States. It is important to note that a refugee does not include “anyone who 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.”
Claims of Asylum
The United States Attorney General has the ability to grant asylum in accordance with the law. A claim of asylum or refugee status must be made on the basis of one of the protected grounds. There are five protected grounds, including race, religion, nationality, political affiliation, and membership in a particular social group. A refugee who meets the criteria is protected and, therefore, is allowed to seek shelter in the United States. A person who obtains asylum status is allowed to live and work in the U.S. for one year. They may apply for adjustment of status to become a permanent resident. A permanent resident is also called a green card holder.
Immigration and Nationality Act
The Immigration and Nationality Act (INA) was first enacted in 1952. The INA consists of various laws that pertain to immigration. Specifically, Title 8, Chapter 12 of the code covers immigration and nationality, and Subchapter IV provides for refugee assistance. If approved, an asylee is admitted to the United States for an initial period of one year and is permitted to work and live in the U.S. during that time. The law also provides for financial assistance. The law protects people who are being persecuted by allowing them to stay in the United States for a period of time. A skilled immigration attorney will answer your questions about asylum.
Eligibility
In order to be eligible for asylum, an applicant must be in the United States and must provide proof that they are unable or unwilling to return to their home country due to persecution or fear of persecution based on the five protected grounds. An asylum-seeker may include their immediate family on their application. Immediate family members who can be included are the spouse and any unmarried children under the age of 21. Family members must also be in the United States.
Application Process
A person who meets the criteria may file Form I-589, Application for Asylum and for Withholding of Removal. There are two main types of applications.
Affirmative Asylum Application
An affirmative asylum application is one that is made prior to any removal proceedings. An individual may apply even if they are in the United States, regardless of whether they entered legally or illegally. However, if in the United States, the asylum seeker has no more than 1 year to file an application. If a person fails to file their application within a year of arrival in the U.S., they become ineligible for asylum status.
If the application is denied, the person is immediately eligible for deportation and will be referred to the Department of Justice for removal. A person who was denied asylum status may remain in the United States only if they have non-immigrant status through another type of visa, such as a student visa.
Defensive Asylum Application
A defensive asylum application may occur when someone has already been detained or was arrested upon entry at the U.S. border. The person may then legally seek asylum. The case will go before a judge in immigration court. The judge will review the case to determine whether the person meets the eligibility requirements for asylum status.
Withholding of Removal
Those who do not meet the qualifications for asylum may be able to follow another path to stay in the United States. Withholding of removal is an exception to an immediate deportation. An immigration judge may find that an individual is subject to removal but also orders that no deportation action be made. In these cases, the person must then prove that they would be in immediate danger and that their life or freedom would be threatened if they were to return to their homeland. If the person meets the requirements for asylum, it will be granted.
Once the applicant submits their application, the USCIS will process the request. The applicant will receive a notice of receipt. The USCIS will schedule a biometrics appointment, and a security review will be completed. During the interview you must present proof that you are in fear of your safety in your homeland.
A determination regarding your request for asylum status will be made, typically within 180 days. However, there are various circumstances that could lengthen the processing time. Delays are common simply due to backlog and other factors.
A person who has submitted an application for asylum may also request permission to work. This is called an Employment Authorization Document (EAD). You may apply for an EAD 150 days after you submit your I-589, but you cannot receive it until at least 180 days.
Those seeking asylum have an absolute right to do so under the law. The process can be lengthy and may seem complicated to some. It is important to gather information that proves you have a credible fear for your safety. An experienced immigration attorney will help guide you through the process and assist you every step of the way. Contact us today at Ibrahim Law Global at (708) 584-3043 to schedule an appointment with our legal team.
