Legal Information: Federal


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May 17, 2013

What 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