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Legal Information: Federal


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January 29, 2019

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

You can apply for asylum through either the affirmative process or the defensive process.

Through the affirmative asylum process, you file an application for asylum after arriving in the U.S. To be granted asylum through the affirmative asylum process, you must be physically present in the U.S. 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 the defensive process. A person can file a defensive application for asylum as a defense against removal from the U.S. For a defensive asylum application, 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 if they are:

  • referred to an immigration judge by USCIS after not being granted asylum at the end of the affirmative asylum process; or
  • placed in removal proceedings because they were caught (apprehended):
    • in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
    • by a U.S. Customs and Border Protection (CBP) officer while trying to enter the U.S. 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.1

For affirmative or defensive asylum petitions, you must apply for asylum within one year of the date of your last arrival in the U.S. However, there can be an exception to the one-year filing deadline if you can show that:

  • there are:
    • 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.2

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 National Organizations Immigration page.

1USCIS website
2 8 CFR § 208.4(a)(2)