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Each year, people come to the U.S. looking for protection from the persecution they have suffered or are fearful they will suffer, because of their race, nationality, religious beliefs, political opinions, or affiliations with certain social organizations. If you are eligible to file for asylum, you may include your spouse and your children who are in the U.S. on your application when you file, or any time up until a final decision has been made in regard to your case. Children must be unmarried and under the age of 21 to be included.
There are two ways to Apply for Asylum: Affirmative processing and Defensive processing.
WHO IS ELIGIBLE?
You need to be physically present in the U.S. to apply for asylum via the Affirmative process. No matter how you arrived in the U.S., you can apply for asylum status. You must, however, apply within 1 year of your most recent arrival in the U.S. unless you can demonstrate:
- Altered circumstances that directly affect your being eligible for asylum or that the delay was caused by unusual circumstances, and
- That you filed in a reasonable time considering those unusual circumstances.
Due to recent changes in the USCIS policies, Affirmative Asylum Applications are being processed in a different way than previously. Unfortunately, this change in policy may directly and adversely affect your rights as an asylum-seeker. As of January 29th, 2018, the USCIS Asylum Division is giving priority to Affirmative Asylum Applications filed the most recently in time. What this means, is that if you file your application tomorrow for example, USCIS intends, within 21 days of receiving your application (or within 21 days of tomorrow in our example), to assign you an Asylum Interview Date in the not-too-distant future. That interview, as was the case previously, will then be used to decide if you’re potentially eligible for asylum or not.
USCIS has a huge backlog of Asylum cases, and they used to process the oldest ones first. Thus, there was a policy where you could seek employment authorization to work after 150 days of USCIS receiving your application, while you waited for them to process your application. Thus, previously people could file asylum applications as a way to extend their stay in the United States, and typically became eligible to work for many months and sometimes years, while they waited for USCIS to process their asylum applications.
Now, because USCIS policy has changed and because they are making it a priority to assign interview dates to applications filed within the last 21 days; instead of the oldest pending asylum applications in their backlog, this means new asylum applicants typically won’t get the chance to work and stay in the United States unless their asylum claim is granted. Now, new applicants will quickly be given their asylum interviews, and if the interview goes well, you will be scheduled for an Asylum Hearing before an Immigration Judge to decide ultimately whether you will be granted asylum or not. If the Asylum Interview with USCIS does not go well however, and the USCIS decides your case is non-meritorious, frivolous, or fraudulent, you will be immediately placed in Removal Proceedings.
Thus, if you don’t have the strongest case for asylum based on your facts, now you may really want to think twice before applying for asylum. The aim of this policy change is to reduce the percentage of applicants that file asylum applications solely to extend their time in the United States and to obtain employment authorization. In contrast, if you have a good and legitimate claim to asylum, the length of time for you to be officially granted asylee status should be greatly reduced.
The Defensive process for applying for asylum is used as a defensive strategy against removal from the U.S. This process has not changed as a result of the changes in USCIS policy listed above. If you have been placed in Removal Proceedings in Immigration Court with the Executive Office for Immigration Review (EOIR), either because:
- you were determined by USCIS to be ineligible for asylum as a result of your rejected Affirmative Asylum Application, and thus you were referred to an Immigration Judge; or,
- you were caught at a U.S. port of entry without proper documentation, or were apprehended by U.S. Customs and Border Protection attempting to enter the U.S. without the proper documentation; or,
- you were otherwise placed in Removal Proceedings by Immigrations and Customs Enforcement for an Immigration Violation;
your case for asylum can still be heard in the courtroom before an Immigration Judge during the Removal Proceedings against you, as a defense to your attempted removal. The United States is against all forms of persecution, and thus even if they are seeking your removal from the United States, asylum arguments will still be entertained by the Immigration Judge during removal proceedings, and valid asylum eligibility even at this late stage, will prevent you from being deported from the United States.
Advance Parole. If you are an asylum applicant and you intend to travel outside the United States and return, you must apply for and receive advance parole. If you leave the United States without first obtaining advance parole, we will assume that you have abandoned your asylum application.
Can I ask for political asylum from outside the US?
NO. To apply for political asylum, you must be in the United States (embassies or diplomatic missions outside the US will not help you in this matter). Being outside the US, you can only apply for refugee status and this procedure is also a complicated procedure.
Can I apply for asylum when crossing the border?
This is possible, and such cases often occur at the border crossing with Mexico. The application directly on the border is an extreme measure. A very important point is that when you cross the border without the necessary permission (US visa) and asylum application, you are most likely to be detained and placed in an immigration prison where you will conduct initial inquiries and check all the facts you previously stated . The decisions of the border service can be delayed for weeks or even months.
Can I apply for political asylum if I am illegally in the US?
You have the right to defend and examine your application, even if you are in an illegal status. It is very important that this happens in the first year of your stay in the country. Otherwise, you have to argue, there are compelling reasons why you did not do this before.
How long does it take to get an interview for asylum?
Beginning on January 29, 2018, the Immigration Department for Asylum (USCIS Citizenship and Immigration Service Group) will give priority to the newest applications when assigning interviews. Such a change in the schedule of interviews will make it possible to weed out those applicants who use groundless statements and try to use this process solely to obtain a work permit and will enable the USCIS to immediately identify such persons and begin the process of their deportation. In reality, the new Priority will allow the USCIS to make decisions on qualified asylum seekers more quickly and efficiently.
Can I apply for asylum with a minimum of materials, and send documents and evidence after I apply?
It is possible, but we do not recommend it. In cases where you sent an off-the-shelf petition, the fact of not being prepared may negatively affect your interview and raise suspicions about the reliability of the information provided earlier.
Is it possible to apply for political asylum without a lawyer?
Some apply for political asylum on their own, filling out Form I-589 and attaching a declaration. Applicants, who apply for political asylum in the US do not need to hire a lawyer and an interpreter to apply for political asylum in the United States. But you need to consider important points: 1. Immigration Attorneys analyze the facts of persecution, and apply immigration laws to the facts. 2. Attorneys help applicants to fill out the necessary immigration forms and not make any mistakes in their filing. 3. Attorneys help Applicants prepare for the interview, correctly write a declaration, and collect documents. 4. Attorneys have the right to intervene in the process by using immigration law at all stages of the proceedings. 5. Attorneys can help find an interpreter and represent refugees in interviews and in the process of deportation to the immigration court. When your future is at stake, you need to weigh everything for and against the participation of Attorneys in your process.
Contact Attorney Igor Litvak
Call today for a consultation
The U.S. asylum process is very complicated, so the best chance of success comes from working with an experienced asylum attorney. We are highly experienced in US asylum law. We have helped people from all over the world fleeing persecution to gain asylum in the US. Our attorneys, translators, and support staff will work with you individually to give you the best chance of success possible. We know how difficult and heart-wrenching the asylum process can be, and we will be with you every step of the way.
Your citizenship or your residency status is something you should entrust to a professional. Call the top New York Immigration Attorneys toll-free at 1-888-ZONTLAW / 1-888-966-8529.