Know the Laws:
UPDATED May 4, 2010
Basic Information
back to topWhat is asylum? Who is eligible for asylum status?
Asylum is an immigration status that may be granted to someone who is already here in the U.S. and is unable or unwilling to return to his or her country of nationality because of persecution (mistreatment/abuse) or a well-founded fear of persecution based on one or more of the following:
- race,
- religion,
- nationality,
- membership in a particular social group, or
- political opinion.*
Immigration laws are complicated. It is important to speak to a lawyer who has experience in this area of law. To find a list of legal resources in your area, please see Finding a Lawyer and select your state or see our International / Immigration page.
* INA § 101(a)(42), 8 CFR § 208.13
back to topCan I apply for asylum if I am undocumented?
Yes. You may apply for asylum with USCIS regardless of your immigration status, whether you are undocumented or came here legally on a nonimmigrant visa.* See the prior question (What is asylum? Who is eligible for asylum status?) for more information on what you have to prove to be eligible.
* See USCIS website
back to topWhen should I apply for asylum?
An application for asylum must be filed within the first year of your arrival or else you would have to prove that you qualify for an exception to the one-year deadline.* If you have missed the one-year deadline, please talk to an immigration lawyer as soon as possible to find out if you might qualify for an exception to the one-year filing rule. You can find a lawyer on our Finding a Lawyer page or our International/Immigration page.
You need to be physically present in the U.S. when you file for asylum.**
* 8 CFR § 208.4
** 8 U.S.C. § 1158(a)(1)
back to topHow do I apply for asylum?
In order for you to apply for asylum, you need to meet all of the following conditions describe below:
- You need to be physically present in the U.S.;
- You don’t need to have a legal immigration status in the U.S., but you cannot be in removal proceedings (Note: if you are in removal proceedings, you can request asylum as a defense to removal – see Can I request asylum if I am already in removal proceedings?);.
- You need to file your application within a year of your last arrival in the U.S. or you need to prove that you qualify for an exception to the one-year deadline; and
- You need to file Form I-589, Application for Asylum and for Withholding of Removal.*
Note: An individual seeking asylum comes to the U.S. on his/her own; either by using a nonimmigrant visa or by entering the U.S. without inspection (when a person enters the country illegally). Unlike a refugee, a person seeking asylum does not receive any assistance from the U.S. government before arriving in the U.S.
* See USCIS website
back to topCan I request asylum if I am already in removal proceedings?
If you are in removal proceedings, but believe you might qualify for asylum, you can request asylum as a defense against removal from the U.S.
Individuals are placed into what is known as “defensive asylum processing” in one of these two ways:
1. They are referred to an immigration judge, after their affirmative asylum case was not approved.
2. They are placed in removal proceedings because they were caught:
a. In the U.S. or at a U.S. port of entry without proper legal documentation or in violation of their immigration status; or
b. By the U.S. Customs and Border Protection (CBP) without proper legal documentation, and were found to have a well-founded fear of persecution or torture.*
*See USCIS website
back to topWill I get an interpreter if I don’t speak English?
It depends. If you are applying for asylum without being in removal proceedings, you will have to bring your own interpreter to the asylum interview. The government will not provide one for you. If you have a lawyer or advocate helping you apply, this is something s/he can hopefully help to arrange.
If you are requesting asylum as a defense to a removal proceeding, the government will provide an interpreter for you for the asylum hearing and all court proceedings.*
*See USCIS website