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 their last arrival in the United States, unless you can show:
You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS. For instructions on how to file for asylum, see the “Form I 589, Application for Asylum and for Withholding of Removal” link to the right.
If your case is not approved and you do not have a legal immigration status, we 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. See ‘Defensive Asylum Processing With EOIR’ below if this situation applies to you.
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.
For step-by-step information about the affirmative asylum process, see the “The Affirmative Asylum Process” link to the right.
Defensive Asylum Processing with EOIR
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:·
Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties:
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 information about the grant of asylum by an Immigration Judge, see the “Granted a Green Card by an Immigration Judge” link to the right.
For information about the Executive Office for Immigration Review, including the Immigration Courts and the Board of Immigration Appeals, see the “Executive Office for Immigration Review” link to the right.
Last Reviewed/Updated: 03/10/2011