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UPDATED May 17, 2013

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If you are an immigrant in the U.S. afraid to return to your home country due to a fear of persecution (mistreatment/abuse), you may be eligible for asylum, which would allow you to stay in the U.S. legally.

Basic information

back to topWhat is asylum? Who can be 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.*
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.

Note: Foreign victims of severe domestic violence and sexual abuse may qualify for asylum status as part of the “membership in a particular social group” category.

An undocumented person can apply for asylum** but if the application is denied, it could ultimately result in his/her deportation.  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
** See USCIS website

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back to topWhat types of asylum petitions are there? How long after arriving in the U.S. do I have to apply?

Asylum can be applied for in two different scenarios, known as the affirmative process and the defensive process.

To obtain asylum through the affirmative asylum process, you must be physically present in the United States.  You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

The other way to seek asylum is through what is called the defensive process.  A person can file a defensive application for asylum as a defense against removal from the U.S.  For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).  People are generally placed into defensive asylum processing in one of two ways:

  • They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process; or
  • They are placed in removal proceedings because they:
    • Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
    • Were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an asylum officer.
For affirmative or defensive asylum petitions, you must apply for asylum within one year of the date of your last arrival in the United States, unless you can show:
  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing; and
  • You filed within a reasonable amount of time given those circumstances.*
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.

* 8 CFR § 208.4(a)(2); USCIS website  

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back to topCan I request asylum if I am already in removal proceedings?

Yes.  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.  For more information on the defensive asylum process, see What types of asylum petitions are there? How long after arriving in the US do I have to apply?

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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 (under the affirmative asylum process), 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 removal proceedings (under the defensive asylum process), the government will provide an interpreter for you at the asylum hearing and in all court proceedings.*

* See USCIS website

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The asylum process

back to topWhat is the fee to apply for asylum?

There is no fee to apply for asylum* but there may be minor fees associated with getting a criminal background check or with obtaining other supporting documentation.**

* See USCIS website – new link
** See Public Counsel Law Center’s Asylum Manual, page 72

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back to topHow long does the asylum process take?

Usually, a decision should be made on your asylum application within 180 days after the date you filed your application.*

* 8 U.S.C. § 1158(d)(5)(A)(iii)

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Benefits of getting asylum

back to topWhat are the benefits of asylum status?

If the asylum application is approved, you will be:

  • Granted legal status in the U.S.;
  • Granted work authorization (an Employment Authorization Document (EAD));* and
  • After one year of being granted the asylum, eligible to apply for legal permanent residency (green card).**  Note: When you apply for a green card (permanent residence), your spouse and children are also eligible to apply for a green card if they were admitted to the United States as asylees or were included in your grant of asylum.***
For a more complete list of benefits, you can go to the USCIS website’s “Benefits and Responsibilities of Asylees” page.

* 8 U.S.C. § 1158(c)(1)(B)
** 8 CFR 209.2(a)
*** USCIS website

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back to topCan family members benefit from the asylee (asylum status holder)?

Yes.  If you have already been granted asylum, you may apply for derivative asylum status for your spouse and/or unmarried minor children under age 21 (defined in the next paragraph.)*  This means that your spouse and/or or children may be granted asylum status based on your own asylum status.

Unmarried minor children (under the age of 21) could include a step-child who became your step-child before s/he turned 18** and an adopted child (if the adoption meets certain requirements). To meet the definition of spouse, you need to be legally married according to your home country’s law.  However, the U.S. will not recognize some legal marriages, even if those can be considered legal marriages in your home country (i.e., gay marriages, polygamous marriages, etc.).

In order to request asylum status for your family, you need to file the proper paperwork within the first two years of being granted asylum status. You may be able to sponsor your family members whether they are in the U.S. or in your home country.***  As always, before filing any forms, we suggest talking to an immigration attorney.  You can find an attorney by going to our Finding a Lawyer page or our International / Immigration resources page.

* 8 CFR § 208.21(a)
** See 8 CFR § 208.21(b); INA § 101(b)(1)(B)
*** 8 CFR § 208.21(c) & (d)

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back to topCan I become a lawful permanent resident if I hold an asylum status? What are the requirements?

Yes.  If you hold an asylum status, you may apply for your lawful permanent residency one year after being granted asylum if you:

  • Have been physically present in the U.S. for at least one year after being granted asylum;
  • Continue to meet the definition of an asylee (or continue to be the spouse or child of such an asylee);
  • Have not abandoned your asylee status;
  • Are not firmly resettled in any foreign country; and
  • Continue to be admissible to the United States, although a waiver may be available to you if you are deemed to be inadmissible.*
In order to file for adjustment of status to become a legal permanent resident, there are many forms that you need to file.  As in any other immigration proceeding, it is always recommended to speak with a lawyer who can help you to file the correct documents.  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.

* See 8 CFR § 209.2; see also USCIS website “Green Card for an Asylee”

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