Asylum

 

Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

If you are eligible for Asylum you may be permitted to remain in the United States. To apply for Asylum, file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival to the United States. There is no fee to apply for Asylum. You may include your spouse and children who are in the United States on your application at the time you file or at any time until a final decision is made on your case. To include your child on your application, the child must be under 21 and unmarried. For more info Contact John A. Nicelli Esq.,  Dial (212) 227-8020, to make an arrangements for a consultation.

 

Permission to Work in the United States
You cannot apply for permission to work (employment authorization) in the United States at the same time you apply for  asylum. You may apply for employment authorization if:

  • 150 days have passed since you filed your complete asylum application, excluding any delays caused by you (such as a request to reschedule your interview) and No decision has been made on your application
  • If you are granted asylum you may work immediately. Some asylees choose to obtain Employment Authorization Documents (EADs) for convenience or identification purposes, but an EAD is not necessary to work if you are an asylee.  

To apply for employment authorization, you must file a Form I-765, Application for Employment Authorization.  There is no fee to apply for your first EAD if you have a pending asylum application or if you have been granted asylum.


Bringing Your Family to the United States
If you are granted asylum you may petition to bring your spouse and children to the United States by filing a Form I-730, Refugee/Asylee Relative Petition. To include your child on your application, the child must be under 21 and unmarried. You must file the petition within two years of being granted asylum unless there are humanitarian reasons to excuse this deadline. There is no fee to file this petition.

  
Filing for Permanent Residence (Green Card)
You may apply for a green card one year after being granted asylum. To apply for a green card, file a Form I-485, Application to Register Permanent Residence or to Adjust Status. You must submit a separate I-485 application packet for yourself and, if applicable, for each family member who received derivative asylum based on your case.


Obtaining Asylum in the United States
The two ways of obtaining asylum in the United States are through the affirmative process and defensive process.

Affirmative Asylum Processing With USCIS
To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

You must apply for asylum within one year of the date of your last arrival in the United States, unless you can show:

Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing

You filed within a reasonable amount of time given those circumstances.


For more information about Obtaining Asylum Please call Mr. John A. Nicelli Esq., (212) 227-8020
You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal.

 If your case is not approved and you do not have a legal immigration status, the USCIS  will issue a Form I-862, Notice to Appear, and forward (or refer) your case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. If we do not have jurisdiction over your case, the Asylum Office will issue an I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing.

Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). You may live in the United States while your application is pending before USCIS.  If you are found ineligible, you can remain in the United States while your application is pending with the Immigration Judge.  Most asylum applicants are not authorized to work until they receive their employment authorization from the USCIS.

 

Defensive Asylum Processing with Executive Office for Immigration Review(Immigration Court)
A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR). Individuals are generally placed into defensive asylum processing in one of two ways:·

 

  • They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they:

 

  • Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status,

 OR

  • Were caught by U.S. Customs and Border Protection (C.B.P.) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer. For more information on the Credible Fear Process, see the “Questions & Answers: Credible Fear Screenings” link to the right.

Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties:


• The individual (and his or her attorney, if represented)·

• The U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE)

The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.

 

For more information about Asylum, Green cards, or Permission to work Please call (212) 227-8020.