Asylum is a kind of protection granted by a foreign country to an alien, or individual that qualifies as a refugee. Asylum seekers whose applications are approved are called asylees.
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. and applied for asylum under 8 USC § 1158. Physical presence in the United States is what differentiates between an asylee and refugee.
The Attorney General has the discretion to grant asylum according to the Immigration and Nationality Act.
Both refugees and asylees 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.”
Refugee assistance includes, for example, work authorization and financial support. Asylees are legally permitted to work in the U.S. 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. An asylee can include their spouse and unmarried children (under 21) on asylum applications when they file Form I-589 or before the final decision is made on their case. They must also be physically present in the United States.
There are two types of asylum applications, affirmative and defensive:
- An affirmative asylum application is filed at the USCIS asylum office before the initiation of removal proceedings. It must be filed on applicants’ own initiative. Individuals can apply 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 according to 8 USC § 1158. Once an application is approved and asylum granted, they can remain in the U.S. If denied, an individual will be referred to DOJ for removal proceedings, unless they can legally remain in the U.S.
- For example, if a foreign student with an F-1 visa applied for asylum but was 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 do not qualify for asylum, they may qualify for a lesser form of relief called withholding of removal. Withholding of removal is granted when an immigration judge orders deportation but states that the government should refrain from deporting the individual. Individuals must prove that they must not return to their home country or else 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 May of 2024 by the Wex Definitions Team]