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CommonQuestions GreenCards Citizenship Refugees & Asylum Practitioners  
 
Applicant for Asylum
(last updated July 31, 2003)

1. Difference between asylum and U.S. refugee status
2. Asylum after arrival in the U.S.
3. Time limit on filing an asylum application
4. Travel abroad while an asylum application is pending
5. How to find legal assistance

1. What is the difference between “asylum” and “U.S. refugee status”? Both terms refer to a form of refugee protection that is grounded in establishing a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. However, persons who seek U.S. refugee status must apply for admission to the U.S. Refugee Program while overseas. All processing, including medicals, waivers of ineligibilities, sponsorship assurances, and adjudication of Form I-590, Registration for Classification as Refugee, must be completed before the person arrives in the United States. Asylum, on the other hand, is a status that one applies for either upon arrival at a U.S. port of entry or after entry into the United States. Students, visitors, and other nonimmigrants who fear to return home sometimes have no alternative but to apply for asylum after arrival in the United States.

Persons holding U.S. refugee status or asylum status may apply for Lawful Permanent Residence after one year of physical presence in the U.S. in that status and afterwards, when eligible, for naturalization.

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2. If a person arrives in the United States as a visitor and afterwards has good reason to fear a return to her home country, is there a way to apply for refugee status while here in the United States? A person who is already in the United States cannot apply for access to the U.S. Refugee Program, but she may be eligible to apply for a form of refugee protection known as “asylum”. An asylum applicant must establish either past persecution or a well-founded fear of future persecution on account of nationality, religion, race, political opinion, or membership in a particular social group. However, there is a one-year filing deadline from the date of one's last arrival in the United States, unless the applicant can qualify for an exception. Preparation of an asylum application is a complex matter requiring the expertise of an experienced immigration practitioner. The application form used to apply for asylum is Form I-589, available on the website of the Bureau of Citizenship and Immigration Services at http://www.bcis.gov/graphics/formsfee/forms/i-589.htm. The 24-page form includes 13 pages of instructions and useful information for asylum applicants.

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3. Is there a time limit for filing an asylum application? Yes, there is a one-year filing deadline from the date of one's last arrival in the United States, unless the applicant can qualify for an exception. There are two broad categories of exceptions: changed circumstances and extraordinary circumstances. Each category has been significantly broadened by regulations created in January 2001.

Changed circumstances refers to any factor that materially affects an applicant's eligibility for asylum. These include, but are not limited to:

  • Changes in conditions in the applicant's home country;
  • Changes in applicable U.S. law;
  • Activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; and
  • If a spouse or child had previously been included as a dependent in another alien's pending asylum application, the changed circumstance that would result through the loss of the relationship to the principal applicant through marriage, divorce, or death.

Extraordinary circumstances refers to events or factors directly related to the failure to meet the one-year deadline, so long as the alien files an asylum application within a reasonable period given those circumstances. The burden of proof is on the applicant to satisfactorily establish that the circumstances were not intentionally created by her own action or inaction, that those circumstances were directly related to the alien's failure to file the application within the one-year period, and that the delay was reasonable under the circumstances. Those circumstances may include but are not limited to:

  • Serious illness or mental or physical disability --- including any effects of persecution or violent harm suffered in the past ---- during the one-year period after arrival;
  • Legal disability as, for example, when the applicant was an unaccompanied minor or suffered from a mental impairment, during the one-year period after arrival;
  • Ineffective assistance of counsel;
  • The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
  • The applicant filed an asylum application prior to the expiration of the one-year deadline, and that application was rejected as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and
  • The death or serious illness or incapacity of the applicant's legal representative or a member of the applicant's immediate family.

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4. If a person has filed an asylum application that is still pending and has an emergency that requires travel abroad, is there a way that she can leave the U.S. and then return to pursue the asylum application? Yes, this is possible, but is rarely recommended except in critical emergencies. Before leaving the United States the asylum applicant would have to apply for special permission known as advance parole. Failure to obtain an advance parole document would result in abandonment of the asylum application. Furthermore, an applicant who leaves the United States with advance parole and returns to the country of claimed persecution is also presumed to have abandoned her asylum application, unless the applicant can provide compelling reasons for such return. The form used to apply for advance parole is Form I-131, available on the website of the Bureau of Citizenship and Immigration Services: http://www.immigration.gov/graphics/formsfee/forms/i-131.htm. An asylum applicant should seek competent counsel before applying for advance parole to depart the United States.

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5. If a person needs help in preparing and filing an asylum application, where can she look for legal assistance? Asylum applications are complex matters that should be prepared only with the guidance and representation of an attorney or an accredited representative certified by the Board of Immigration Appeals. Here are four good sources that may lead to competent and affordable legal assistance:

1) Local bar associations. To search for an attorney with experience in representing asylum applicants, one may try contacting a local bar association. A handy list of such associations throughout the United States is available on this website: http://www.hg.org/northam-bar.html. Since asylum applications are of a humanitarian nature, there may be attorneys willing to assist on a pro bono basis, at little or no cost to the applicant.

2) Free Legal Service Providers. For a list of free legal service providers by state, click on http://www.usdoj.gov/eoir/probono/states.htm. This site is the Pro Bono Program within the Executive Office for Immigration Review in the U.S. Department of Justice. It provides a list of attorneys and organizations who may be willing to represent aliens in immigration proceedings before the Immigration Courts, including those seeking asylum, on a pro bono (free of charge) basis. Listings also include information on specific languages spoken by staff. However, many of these attorneys and organizations work mainly with clients who are already in a proceeding before an Immigration Judge, so it is best to check ahead and clarify which services a caller needs.

3) Accredited Representatives. For a list of agencies and representatives that are authorized by the U.S. Department of Justice to represent aliens in immigration matters, click here: http://www.usdoj.gov/eoir/statspub/raroster.htm. The Board of Immigration Appeals (BIA), a division within the Executive Office for Immigration Review (EOIR), updates this list quarterly . The BIA determines which organizations and representatives are qualified to represent persons in their immigration matters before our federal immigration agencies and before the Immigration Courts, including the BIA.

4) Information and volunteer legal assistance. In addition, the web page http://www.usdoj.gov/eoir/probono/probonoassist.htm offers a list of programs that provide help to indigent immigrants in need of immigration information and volunteer legal assistance.

Local offices of the Bureau of Citizenship and Immigration Services also provide lists of authorized agencies that provide low-cost or free immigration services. In the past, we have found that these sometimes reflect outdated information.

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