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The US Asylum Process: How it Works

7.5 minute read
"Most people have a misconception that showing up at the US border is enough to gain asylum in the United States. However, it is an oversimplification. Gaining asylum in the US is by the most rigorous and scrutinized way to be admitted to the US as asylum seekers are required to go through an extensive amount of vetting by various government agencies."
Written by My Visa Source Team
Published on:  Jul 18, 2021
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Most people have a misconception that showing up at the US border is enough to gain asylum in the United States. However, it is an oversimplification. Gaining asylum in the US is by the most rigorous and scrutinized way to be admitted to the US as asylum seekers are required to go through an extensive amount of vetting by various government agencies. 

Foreign nationals travel to and visit the United States for a plethora of reasons including reuniting with family members, employment opportunities, international study experience, business travel, etc. These are all voluntary reasons and most of them have a positive immigration experience. However, it is not the same for asylum seekers. See Visitor Visas for temporary status.

Asylum seekers are displaced people who have been forced to seek refuge. According to the United Nations High Commissioner for Refugees (UNHCR), there are an estimated 80 million people who have been forced to seek refuge outside their country of citizenship. As of mid-2020, 4.2 million out of those 80 million are asylum seekers. 

What Is Asylum and How Does it Work in the US?

Asylum is the way civilized nations ensure to protect individuals from countries that are unwilling or unable to protect them. The Immigration and Nationality Act defines a refugee or an asylum seeker as a person who is unable or unwilling to return to their country of citizenship due to persecution or a well-founded fear of persecution based on their race, religion, nationality, membership in a particular social group, or political views. 

The US Citizenship and Immigration Services (USCIS) manages asylum applications. Asylum is granted only based on the above-mentioned criteria. The USCIS will not grant asylum based on:

  • Wanting better employment opportunities
  • Because family-based or other immigration pathways take longer
  • Not knowing other options

Every year, USCIS admits 25,000 asylum applications. However, there is no mandatory limit. There is a visa capacity limit on refugees. Recently, President Joe Biden announced an increase in refugee admissions to 125,000, but that is not related to asylum seekers. 

What Are the Reasons for Seeking Asylum?

The main reasons for seeking asylum generally are that people are trying to escape violence or persecution in their home countries that their country’s government is not protecting them from. This involves religious or political persecution. Most families leave countries like Guatemala, Honduras, El Salvador, etc because of the increased gang and drug-related violence, forced smuggling activities, and persecution of the LGBTQIA+ community. 

How Can You Seek Asylum in the United States?

Generally, asylum seekers show up at the US Port of Entry (POE) like border crossings, airports, or seaports. There is no process to apply for asylum from their home countries. There are 2 types of asylum processes in the US:

Affirmative Asylum Process: 

An affirmative asylum is what is considered a regular asylum case. This process involves the applicant being present in the US and applying for asylum at the POE. Generally, the applicant files Form I-589, Application for Asylum and Withholding of Removal within a year of arriving in the US. There is no application fee required. The applicant will also be provided with a qualified interpreter for the asylum interview if required. 

Defensive Asylum Process: 

When an asylum seeker has already been issued a removal order through an immigration court, the case becomes a defensive asylum process. This process involves the applicant requesting the government to revoke the decision to remove them from the US and allow them a chance to remain in the US via asylum. If the following situations apply, then an asylum case is defensive:

  • The person claimed asylum at the border
  • They applied for affirmative asylum but their application was refused
  • They were issued a removal order for immigration violations 

Sometimes, if the Customs and Border Protection (CBP) officials have a reason to believe that the person’s life is in danger, then they may go through the defensive asylum process. This is known as the Credible Fear Process. 

To be in the defensive asylum process, the applicant must have gone through removal hearings in an immigration court. The US Immigration and Customs Enforcement (ICE) argues the case against the asylum seeker. 

Who Is Eligible For Asylum in the US?

Individuals who fall under the above-mentioned criteria for the definition of asylum seeker can claim asylum if they are present in the US. They can also include their accompanying spouse and dependent children under the age of 21 in their asylum applications. Filing Form I-589 is a straightforward process, however, the whole process goes way beyond a form. 

Applicants must submit evidence to support their claim of persecution or fear of persecution. However, for most applicants, this is the hard part. Applicants can also submit supporting documents that may include witness statements from people who witnessed firsthand the conditions that make the applicant eligible for asylum, the applicant’s statement, and proof of identity of people submitting the statement.

Are Asylum Seekers Allowed to Work in the US?

Asylum seekers may qualify for temporary employment authorization if they have a pending asylum application. While it is not a mandatory requirement, many asylum seekers choose to apply for employment authorization for convenience or identification purposes. They can obtain work authorization by filing Form I-765, Application for Employment Authorization.

What Does Vetting Mean in the Asylum Process?

Asylum seekers are required to go through an extensive vetting process that involves numerous background checks, interviews, and adjudication processes. The US government spends significant amounts of resources in vetting asylum seekers. Once your application goes through the affirmative process, you will be required to attend an asylum interview where an asylum officer will decide on your application.

If you are going through the defensive asylum process, then ICE officers will be making the argument to issue you a removal order. The decision will depend on the immigration judge to grant you asylum or issue you a deportation order.

If your case is denied by the immigration judge then you can appeal this decision to the Board of Immigration Appeals (BIA), Federal District Courts of Appeal, or in rare cases the Supreme Court of the United States (SCOTUS).

What Happens At An Asylum Interview?

As an affirmative asylum seeker, you will be required to attend an interview with an asylum officer. These interviews are typically different from immigration interviews for family sponsorship or work visa applicants. The vetting process will involve reviewing all the documents submitted with the original application as well as verifying the identities of anyone referred to in the documentation.

The decision made by the asylum officer will be reviewed by a supervisory asylum officer to ensure consistency with the law. Based on your case, this decision may be referred to asylum division staff at the USCIS for additional review. The final decision will be informed by the USCIS, generally within 2 weeks after the interview.

What Does Extensive Screening for Asylum Involve?

Asylum seekers are required to submit biometric information if they are between the ages of 12 years 9 months and 79 years. This information is used by the Federal Bureau of Investigation (FBI) to conduct thorough background checks. The FBI will conduct extensive screening to ensure that the applicant did not have any known criminal associations, suspicious activities, or past violations. The FBI reviews the following:

  • Your criminal background
  • Any links to organizations that may pose a threat to the US
  • Your travel history
  • Any foreign activity
  • Your immigration records to check for any previous case of a removal proceeding
  • Intelligence records that may refer to the applicant or any terrorist watchlists
  • Potential fraud, including identity theft

Apart from the Department of Homeland Security and the USCIS, the following government agencies are involved in the asylum vetting process:

  • Department of Defense
  • Department of State
  • National Counterterrorism Unit
  • Immigration and Customs Enforcement
  • Customs and Border Protection
  • Federal Bureau of Investigation

Who Is Ineligible to Gain Asylum in the United States?

Asylum seekers will not be granted asylum in the US if:

  • They have been convicted of a serious crime in the US
  • They have committed crimes abroad that are not of political nature
  • They have been involved in terrorist activity or linked to a terrorist organization in the past
  • They have aided people in persecuting others
  • They post a threat to the US

What Happens After the Asylum Is Granted?

Once the asylum is granted, you will be authorized to live and work in the US as long as you meet the definition of an asylum seeker. The Office of Refugee Resettlement will provide you access to healthcare assistance.

You will also be provided with an I-94 Arrival/Departure Record by the USCIS as proof of asylum to obtain other benefits. Your accompanying spouse and dependent children will also be granted asylum if they were included in the application.

Your grant of asylum has no expiration date. However, the USCIS may terminate your asylum status based on the following reasons:

  • There is no longer a fear of persecution due to a fundamental change in circumstances
  • You obtained protection from another country
  • Your initial grant of asylum was based on fraud
  • You committed certain crimes or engaged in certain activities that make you ineligible for asylum

To avoid such instances, asylees may apply for US permanent residence after a year in asylum status.

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