The asylum and refugee program in the United States offers protection to certain people who cannot return to their home countries due to persecution or a well-founded fear of persecution. The qualifications for asylum are stringent. Annual limits on the number of allowable asylum seekers and refugees are restrictive. So, obtaining asylum or refugee status can be a challenge for many people in need of it.
Because it is a complex system, many people have questions about the process. At Kenneth Alan Forman PA, our asylum and refugee attorney based in Florida answers some of the most common questions we receive. To get answers specific to your asylum case, contact us at 305-29-7734 to schedule a free consultation.
Who is considered a refugee or asylee in the United States?
U.S. immigration law offers protection through the refugee or asylee process to people who have fled their home country and are unable to return due to persecution or a well-founded fear of persecution.
Under section 101(a)(42) of the Immigration and Nationality Act, a refugee is a person outside of their country of nationality (or country of residence, in the case of stateless persons), who is unwilling or unable to return to their country because they have been persecuted or fear persecution based on their:
- Membership in a particular social group
- Political opinion
An asylee is a refugee who is already in the United States—with or without legal documentation—when they seek protection.
If you are granted asylee status in the United States, you can apply for a green card after one year.
What is the difference between a refugee and an asylum seeker or asylee?
Refugees and asylees (or asylum seekers) are similar and yet different. They both seek asylum in the United States. The main difference is where they apply for asylum. A refugee is granted refugee status while still outside the United States. An asylum seeker is granted asylee status after entering the country or while seeking admission at a port of entry.
Both refugees and asylees have the right to remain in the United States for an indefinite period until it is safe for them to return to their home country. In most circumstances, however, a safe return is not possible and so they seek permanent residency and, later, citizenship. There is a slight difference, however, in terms of seeking permanent residence.
- Refugees must apply for a Permanent Resident Card one year after arriving in the United States (but only if their refugee status has not been terminated).
Asylees may apply for a Permanent Resident Card one year after being granted asylum (but only if their asylee status has not been terminated).
When should I file for asylum?
If you are outside the United States, you can file for asylum at any time. If you are inside the United States, you must file for asylum within one year of arriving in the United States. However, there are some limited exceptions to this one-year rule.
Exceptions to the One-Year Rule
First, you can apply outside of this time limit when your circumstances have materially changed, meaning you are now eligible for asylum even though initially you were not eligible.
Material changes may include:
- Changes in the conditions of your country of nationality
- Changes in U.S. immigration law
- Your involvement in activities that place you at risk of persecution should you return to your country
- You were previously included as a dependent in a family member's asylum application, but they have since died or you have divorced (if you are a spouse) or married or reached the age of 21 (if you are a child).
You can also apply for asylum after being in the United States for more than one year if you can show that extraordinary circumstances caused your delay.
Extraordinary circumstances may include:
- A mental or physical disability, including mental illness, which prevented a person from applying timely for asylum
- Inability to legally apply for asylum previously––for example, you were an unaccompanied child
If you file for asylum after being in the United States for more than a year, you still need to demonstrate that you filed your application within a reasonable time in the circumstances.
What can bar a person from asylum in the United States?
There is a range of circumstances that may bar you from being granted asylum. Some of the most common include situations where you:
- Failed to apply within one year of entering the United States (unless you demonstrate that one of the above exceptions applies)
- Were previously denied asylum by the immigration judge or Board of Appeals (unless you demonstrate a change in circumstances to your eligibility)
- Could be removed to a safe third country under an agreement between the United States and another country or countries
- Were involved in the persecution of a person based on race, religion, nationality, membership of a particular social group, or political opinion
- Have been convicted of a “particularly serious crime”
- Are a threat to U.S. security
- Have “firmly resettled” in a third country
- Have engaged or are likely to engage in a terrorist activity
An immigration lawyer can advise you if any of these apply to your situation.
What documentation is needed to apply for asylum?
To apply for asylum in the United States, you must submit a completed Form I-589, Application for Asylum and for Withholding of Removal.
You also need to file documentation that supports your asylum claim, such as:
- Identity documents, like a passport, national identity card, or birth certificate
- Evidence of the persecution you suffered in your home country––for example, photos, written threats, or police reports
- Statements from witnesses detailing how you have been persecuted
- Any medical reports diagnosing physical or mental conditions as a result of the persecution you have suffered
- Expert reports on the conditions in your home country relevant to your application
- Human rights reports prepared by governments or NGOs, like Amnesty International or Human Rights Watch, on the conditions in your home country
The relevant supporting documentation depends on the circumstances of your case. An asylum immigration lawyer can advise what documents you need and assist you with obtaining them.
Are spouses and children of refugees also allowed to seek asylum?
Yes, spouses and children of refugees are also allowed to seek asylum, but the process varies depending if they are inside or outside the United States.
If inside the United States, you can include your spouse as a dependent in your application for asylum. You can also include your children if they are under 21, unmarried, and already in the United States. Married children or those over the age of 21 need to file separate applications.
If outside the United States, you can apply for derivative asylum for them by filing a Form I-730, Refugee and Asylee Relative Petition.
When can refugees and asylees apply for naturalization?
Refugees and asylees may apply for naturalization five years after the date of their admission to lawful permanent residence. There are other requirements that must be met, including:
- You need to be physically present in the United States for a certain period of time.
- You need to have continuous residence in the United States.
- You need to have good moral character.
- You need to support the principles and ideals of the U.S. Constitution and be willing to take an oath of allegiance to the United States.
If granted asylum, can I work in the United States?
Yes, you can work if granted asylum either as a refugee or an asylee, but there is a slight difference.
As a refugee, you automatically obtain work authorization as part of your refugee status. At the port of entry where you entered the United States, you will be issued Form I-94, Arrival-Departure Record, stamped to indicate “Employment Authorized.” U.S. Citizenship and Immigration Services (USCIS) will also issue an employment authorization document (EAD) either at the port of entry or soon after your entry into the United States.
As an asylee and if granted asylum by the USCIS, the Asylum Office will begin processing your EAD automatically. So, you do not have to file an application for work authorization.
As an asylee and if granted asylum by an immigration judge or the Board of Immigration Appeals (BIA), work authorization is not automatic. Instructions to obtain an EAD from USCIS are available either as a separate handout or in your BIA decision.
Many asylees not yet granted asylum can also request work authorization if their case has been pending for 150 days or more.
What is the average wait time for asylum?
The average wait time varies greatly, depending on where you file for asylum and whether it goes through the affirmative process, defensive process, or expedited process. There are hundreds of thousands of pending cases and a significant backlog adding to the wait time.
For most asylees, the wait could be years (2 to 3 years on average). Refugees arrive in the United States with asylum protections, so there is no wait except for the wait they experienced outside the United States to obtain refugee status.
Contact an Asylum Immigration Lawyer in Florida Today
Asylum is a program to protect people and give them a new home away from their home country until the day they can safely return. The process to obtain asylum, however, is long and confusing. Getting the legal representation you need is key to getting your case approved.
At Kenneth Alan Forman PA, our asylum attorney in Florida is here to help you and your loved ones get the protections you need and the freedoms enjoyed by everyone else in the United States. Contact us either using our online form or by calling us at 305-29-7734 to schedule a Free Consultation. We are here to get you the help you need.