Asylum is a kind of protection granted by a foreign country to individuals, especially those who face persecution in their home countries because of their race, religion, nationality, membership in a particular social group, or political opinion. These asylum seekers whose applications are approved are called asylees.
In addition to asylum, there are other protections provided by U.S. immigration law for individuals who come to the U.S. seeking protection because of persecution, like admission as a refugee and withholding of removal.
Compared to refugees who are still overseas but have been permitted to enter the U.S. under 8 USC § 1157, asylees are those who have reached the U.S. border, were admitted and living in the U.S., or who have physically presented in the U.S. fearing returning to their home countries when applying for asylum under 8 USC § 1158.
No matter whether a person is a refugee or asylee, they should fulfill the statutory requirement of a refugee. According to 8 USC § 1101, a qualified refugee must prove that they are unwilling or unable to return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
There are many resettlement supports for refugees and asylees; for example, work authorization and financial support. Asylees are permitted to legally remain in the U.S. to work. After being admitted for one year, refugees and asylees may apply for adjustment of status to become permanent residents. Refugees and asylees can also bring their families to the U.S. For instance, an asylee can include their spouse and unmarried children under 21 who are in the U.S. on asylum applications when they file Form I-589 or before the final decision is made on their case.
There are two types of asylum applications, affirmative and defensive:
- An affirmative asylum application is filed at the USCIS asylum office on applicants’ own initiative before the initiation of removal proceedings. Individuals can apply no matter whether they have entered the U.S. legally or not, as long as they have not been arrested by DHS and put into removal proceedings in immigration court. However, there is a one-year deadline for application. If they failed to file it within one year of entering the U.S., they will be ineligible for asylum, without any exception. See 8 USC § 1158. Once they get approved and granted asylum, they can remain in the U.S.; however, if they get denied, they will be referred to DOJ for removal proceedings unless they are legally staying in the U.S.
- For example, if a foreign student with an F-1 visa applied for asylum but got denied, they can still legally stay in the U.S. with a student visa.
- For affirmative asylum applicants, if their applications are declined by USCIS Asylum Officers and they have no valid nonimmigrant status, their case will be referred to immigration judges.
- A defensive asylum application is applied through immigration court and heard by an immigration judge. When individuals are arrested at a port of entry by DHS or after the DHS places them in removal proceedings, they can legally apply for asylum.
If individuals are not able to qualify for asylum, they may qualify for a lesser form of relief called withholding of removal. They should prove that they may not be returned to their home country because their “life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” See 8 USC §1231. Since the threat has an objective standard, the Attorney General has no discretion over it.
[Last updated in July of 2022 by the Wex Definitions Team]