A Guide to Navigating Affirmative Asylum in the United States
When must I file my asylum application?
Asylum applications can be filed at any time by foreign nationals physically present inside the United States. However, any application that is not submitted within one year of the foreign national’s arrival into the United States will be subject to the one-year bar on asylum. This means that the foreign national will need to prove why the application was not filed in a timely manner. If the one-year bar hurdle is not cleared, the merits of the asylum application will not be considered. The one-year application hurdle is typically tough to justify under the law. Therefore, it is extremely important that asylum applications be filed within the first year of arrival into the United States.
When will my asylum interview be scheduled?
Currently, USCIS is scheduling asylum interviews under a “Last-in-first-out” method. This means that the last applications received will be scheduled for interviews first. USCIS has divided asylum interview scheduling into three tiers:
First priority – an interview was scheduled but had to be canceled for whatever reason
Second priority – new application pending 21 days or less
Third priority – all other pending applications will be scheduled for interviews starting with older cases first
What to include in your initial affirmative asylum filing?
If you suspect that your asylum interview will take a while to be called due to the priority list mentioned above, you’ll want to do an initial filing that outlines the basis for asylum but does not necessarily depict the basis for the claim in detail. When filing for asylum it is important to avoid duplicate filings or filing evidence that is inconsistent with other documents already submitted to USCIS.
Typically, an initial filing for asylum should include; a completed I-589 form and the foreign national’s declaration. A declaration is a general account of the reasons why the foreign national requests asylum in the United States.
Any declarations from witnesses that can corroborate the persecution suffered by the foreign national should also be included. It is helpful to get these from witnesses while they are still fresh in their minds and they still maintain a relationship to the foreign national requesting asylum.
A minimal but instructive country conditions report. These reports typically describe the social issues affecting the foreign national’s country of origin and serve as corroboration of the foreign national’s claim for asylum.
Lastly, it is important to include any documents that will help corroborate the asylum claim. This includes birth and marriage certificates to show country of origin and familial relationships. Death certificates of other people if their death contributes to the asylum claim. Police reports and medical analysis that substantiate the harm suffered.
When will I receive my work permit once my asylum application is submitted?
Generally, asylum applicants are able to file for Employment Authorization Documents (EADs). Also known as work permits. The general rule is that you may request an EAD 150 days after receiving a receipt for filing your asylum application with USCIS. The receipt is a letter received by you or your attorney called an I-797C Notice of Action form. This form does not confer any immigration benefits. It only confirms that USCIS has received your application.
An EAD may be requested by filing a complete I-765 form with USCIS. This form can sometimes be accompanied by a biometrics requirement. A biometrics requirement means that you will need to have your fingerprints taken by the Department of Homeland Security to confirm your identity and eligibility for an EAD.
Sometimes, a request for an EAD will be denied due to “clock-stoppage”. Generally, clock-stoppage occurs if the foreign national has in any way delayed the asylum adjudication process. A few examples of delay that leads to clock-stoppage are; address changes, interview rescheduling request, and/or a missed biometric appointment.
What can I do if my asylum interview has not been scheduled after waiting many years?
Asylum applicants that fall into the third category mentioned above can have their asylum interviews scheduled. For those that fall into the third category, it is likely that due to the influx of new asylum applications and COVID related delays, their asylum interviews will not be scheduled for many years. For people that have already waited many years and have not had an interview scheduled, they may file a writ of mandamus lawsuit in Federal Court against the Department of Homeland Security. This lawsuit essentially seeks the Federal Court to make USCIS schedule the interview after a prolonged delay outside the normal processing times. Filing this lawsuit typically results in an interview being scheduled soon thereafter and is of no prejudice to the applicant or their asylum claim.
Do I need a lawyer to file an asylum application?
The asylum application process is extensive and requires evidence to be filed along with each form. Additional forms must also be submitted to USCIS to complete the process and obtain a work permit and green card. Mistakes or missing information on any of these forms can lead to USCIS denying your application. A denial can result in a loss of potential benefits and can place you at risk of deportation.
Even if you ultimately choose to file for asylum on your own. You should still consult with a skilled immigration lawyer in your area to determine what other issues may arise. This will avoid delays, lost fees, and risk of deportation.
This article is written by immigration attorney Matias G. Bebeni, Esq. Matias has spent years uniting and keeping families together through his legal assistance both with USCIS and in immigration court.
