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The U.S. has a well-earned reputation for being a place which accepts people from all over the world. The Statue of Liberty in Manhattan is one of the testaments of this fact. Perhaps more than any other country, the U.S. has also been the receiver for those who are trying to escape persecution or mistreatment of one kind or another. The U.S. has a program designed specifically to assist people who are attempting to flee persecution or mistreatment and attain American citizenship. This program is referred to as “asylum.” The rules governing asylum are complex; those seeking asylum are strongly encouraged to seek counsel from a qualified immigration attorney.
In this post, we will provide an overview of how asylum works. Readers should note that this is merely a preliminary treatment, and that there is plenty of additional facts which aren’t covered here.
- Basics of Form I-589 – Application for Asylum and for Withholding of Removal
Asylum refers to the process whereby a person seeks protection from persecution on the basis of race, religion, politics, nationality, or social group membership. A person who flees to the U.S. out of fear of persecution on one of these bases may be permitted to remain and potentially apply for permanent residency (Green Card). To begin this process, the person seeking asylum needs to complete and submit a Form I-589. This form must be filled out and submitted within one year after the person’s arrival in the U.S. Importantly, the person seeking asylum and completing Form I-589 may also include their spouse and children within the application. Any children included on the application must be under 21 years of age and unmarried at the time of the submission.
- Affirmative Asylum vs. Defensive Asylum
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There are essentially two different avenues which can be taken when applying for asylum in the U.S. One avenue is referred to as “affirmative asylum,” and this involves someone applying for asylum while physically residing in the U.S. within 1 year of the date of his or her arrival. Affirmative asylum means that this application isn’t triggered in response to any deportation attempt; it simply represents the person coming forward and attempting to alter his or her status. The 1 year requirement will normally be firm, although the USCIS does recognize extenuating circumstances. Defensive asylum, by contrast, occurs in response to an attempt to deport the person seeking asylum. Typically, a defensive asylum application happens after the person is apprehended and is identified as being without proper authorization to reside in the U.S., or when the person is referred to a judge by USCIS because the 1 year rule has rendered them ineligible to seek asylum.
- Working after Filing Form I-589
People seeking asylum may be able to work in the U.S. while their Form-589 is being reviewed. To become eligible to work within the U.S. while seeking asylum, the person must complete and submit a Form I-765, which is the Application for Employment Authorization. The big requirement which must be met before Form I-765 can be submitted is that the prospective worker must wait 365 calendar days after submitting Form I-589. In other words, the Form I-589 must be pending for at least 365 days. When the USCIS reviews your Form I-765, it will use certain criteria to determine whether to grant the work authorization. These criteria are complex, and so we may return again in the future to discuss these criteria in detail.
After the person’s Form I-589 is accepted, the asylum seeker may ultimately become a permanent resident after filing a Form I-485.
- Contact New Frontier Immigration Law for Additional Information
As you can see, this topic can become quite complex very quickly. For more information, or for professional assistance, please reach out to New Frontier Immigration Law today by calling 623-742-5400.
