The asylum process in the U.S. can be of two different types. Put simply, U.S. Citizenship and Immigration Services (USCIS) defines affirmative asylum and defensive asylum processes. It is very important for you to know the differences between affirmative and defensive processes if you apply for asylum. In this article, we are going to clarify how these two asylum processes are organized.
Asylum Process – The two ways for an individual to receive asylum in the United States
The basic principle to distinguish these two types of asylum process depends on how you apply for asylum. If you, for instance, apply on your own initiative, then this asylum process is called affirmative. To receive asylum through defensive process, however, you must be in legal proceedings for certain violations which we will discuss in a dedicated section below.
Here is one more aspect that we need to clarify: How long does take for the asylum process to complete? Actually, it is difficult to tell how much time a U.S. asylum process will take in your case.
USCIS will take time to investigate your case and decide what to do. Therefore, the time frame does not directly depend on you. The best you can do is provide plausible documentation to prove your case.
The following sections will discuss the specifics of the asylum process in the United States.
To receive asylum through the affirmative process, you must successfully pass four stages. Here are they:
- Arrive to the United States.
You can only apply for asylum if you are physically presented on the U.S. territory. Otherwise, if you are located beyond the U.S. territory, you may apply for a refugee status. Note that it does not matter if you are legally located in the U.S. or not: you are allowed to apply for asylum in both cases.
- Verify if you are eligible to apply for asylum, and file your application with USCIS.
The U.S. immigration laws define many legal bars that prohibit refugees to obtain asylum in the U.S. For example, if you failed to apply for asylum during the year you entered the U.S., USCIS can reject your application. (Other eligibility requirements are detailed in a dedicated article.) As for the application form you need to file, prepare Form I-589. The official title of the form is Application for Asylum and for Withholding of Removal.
- Pass the biometric services appointment and attend an interview.
You must attend the interview and biometric services appointment unless you have a serious reason for missing the appointments. If that is the case, USCIS will reschedule your appointment. Otherwise, if you missed the interview or biometrics appointment because you forgot or for other unimportant reason, USCIS will deny your application.
- Receive a notification from USCIS.
You will receive a mail from USCIS with their decision over your application for asylum. Depending on their decision, you will receive one of the five documents: Final Denial, Notice of Intent to Deny, Referral to an Immigration Court, Recommended Approval, or Grant of Asylum.
If you receive Grant of Asylum, then your application was approved, and you will be able to request a green card, Social Security card, and work in the U.S. Should you receive a Recommended Approval notification from USCIS, your application for asylum is almost approved. USCIS simply waits for results of your security check. If you have not committed any serious crimes, then you can safely wait for Grant of Asylum.
USCIS mails Referral to an Immigration Court to the refugees who are illegally located on the U.S. territory. If you illegally entered the U.S., you should prepare additional evidence and provide it to an immigration judge at a hearing. You must not miss the hearing in any case. Your immigration judge will rely on the documents you provide and he or she can approve your application regardless of the initial decision made by USCIS.
The last two documents – Notice of Intent to Deny and Final Denial – are sent to you if USCIS does not believe that you are eligible for asylum. For example, if USCIS finds that you can be removed to another safe country from the U.S., then your application will be denied and you will receive the Final Denial document.
But before USCIS mails you Final Denial, they first send Notice of Intent to Deny (NOID) to which you must respond in two weeks at most (16 days to be exact). You will need to provide new evidence to an asylum officer to prove your eligibility for asylum, and his or her approval or denial of your application will be decisive.
We have described how you can obtain asylum through the affirmative process in the United States. The following section gives details about defensive asylum process.
Defensive asylum is basically a way that prevents you from being ordered removed from the United States. The defensive asylum process typically starts for three reasons:
- You illegally entered the U.S. through border control, airport, or seaport;
- The asylum officer decided that you are not a valid refugee; or
- You violated the immigration laws.
In all the listed cases, you will have to attend hearings before the Immigration Judge. You will have to provide valid documentation to explain the reasons why you should not be exported back to your country. A USCIS asylum officer will also attend hearings as your adversary. Also note that USCIS does not decide whether you should be granted asylum or removed from the U.S. in defensive asylum process. The decision fully depends on the Immigration Judge.
With both defensive and affirmative asylum process, you should fill out the application form (Form I-589) for asylum. With affirmative asylum process, you will file the application with USCIS, as we mentioned earlier. But in case with defensive process, you will need to hand the application directly to the Immigration Judge.
With both affirmative and defensive processes, you are also allowed to hire an immigration lawyer to defend your interests.
As you can see, the two processes are quite different. To receive asylum through defensive and affirmative processes, you should prepare great evidence to prove that you are eligible for asylum. Lastly, we recommend that you consult or hire an immigration lawyer to get help during the asylum process.