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Understanding the affirmative asylum process

If an individual has endured persecution or has a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group or political opinion, he or she may come to the U.S. seeking asylum.

If granted asylum, the individual -- or asylee -- will not only be permitted to remain in the country, but also granted a work permit. Most significantly of all, he or she will be granted the right to apply for a green card (i.e., become a permanent resident) and, from there, seek U.S. citizenship.

As encouraging as these possibilities are, it's important for anyone seeking asylum to understand that there is a long road ahead. Indeed, this road to obtaining asylum can go in one of two directions at the outset: the defensive process or the affirmative process.

The affirmative asylum process  

In order to secure asylum via the affirmative asylum process, an applicant must be physically present in the country. In fact, an applicant's ability to seek asylum is not affected by their current immigration status or the means by which they arrived in the U.S.

The application -- known as Form I-589 -- must be filed with U.S. Citizenship and Immigration Services within one year of an individual's last arrival in the U.S. Failure to abide by this deadline will result in the applicant's disqualification for asylum unless he or she can demonstrate the following:

  • Changed circumstances materially affected their asylum eligibility or extraordinary circumstances contributed to the delay in filing, and;
  • The application was filed within a reasonable amount of time in light of these circumstances

Once filed, the applicant will have to submit to both fingerprinting and a background check, and conduct an in-person interview with an asylum officer.

If the asylum officer does not approve the application for asylum and the applicant is currently lacking legal immigration status, he or she will see their case referred to an immigration judge with the Executive Office for Immigration Review who will hold a hearing and issue a decision.

It's important for affirmative asylum applicants to understand that they can remain in the country while their case is pending before both USCIS and the EOIR. Furthermore, while they are unlikely to be granted work permits, they will most likely not be taken into custody by U.S. Immigration and Customs Enforcement.

What all of this really serves to underscore is that the affirmative asylum process is inherently complex. Given this reality and the gravity of the stakes, those involved should strongly consider consulting with a skilled legal professional.

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