Adjourn/Adjournment - The suspension of proceedings to another time or location.
Defensive Asylum Application - A defensive asylum application is an asylum application filed with an immigration judge in removal proceedings in immigration court as a defense against removal from the United States. Immigration courts are part of the Executive Office for Immigration Review (EOIR).
Derivatives – The applicant’s spouse and/or children who will obtain status from the primary applicant.
Lodging - Lodging occurs when a complete asylum application is stamped “lodged not filed” by an immigration court clerk at an immigration court window before being filed with an immigration judge at an immigration hearing. EOIR considers an asylum application filed on the date the immigration judge accepts the application at a hearing. USCIS will consider the date on which the asylum application was stamped “lodged not filed” by an immigration clerk as an application filing date for purposes of calculating the 180-day asylum EAD Clock.
Remand - Sending a case back to a lower court or tribunal to take an action ordered by a higher court or tribunal.
ABT Class Members are not required to file a separate claim or register as class members before they are eligible to receive benefits under the ABT Settlement Agreement. USCIS and the Executive Office for Immigration Review (EOIR) have included ABT Settlement benefits into their regular processes, and class members who meet eligibility requirements will receive these benefits. An ABT Claim should only be filed if the asylum applicant believes that he or she has been denied a benefit that he or she is qualified under the ABT Settlement Agreement.
You may file a claim if you believe you are an ABT Class Member and you believe you have been denied relief under the ABT Settlement Agreement. You must follow the ABT Claim Review process and complete an ABT Claim Form, as outlined in section II.C.11.b of the Settlement Agreement. Before filing an ABT Claim you should review the ABT Settlement Agreement and the ABT Claim Form very carefully and follow the instructions for submitting a claim.
You can file a claim with USCIS or EOIR if:
You were not provided with the notice described in Section III of the Settlement Agreement (“Joint Notice”) when you lodged or filed your asylum application with the immigration court, or when USCIS referred your case to the immigration court.
EOIR did not make the notice available to you during hearings before the immigration court after you lodge or file an asylum application.
In adjudicating an application for employment authorization, USCIS did not use the date you lodged your asylum application at an immigration court clerk’s window as the filing date for the purposes of Employment Authorization Document (EAD) eligibility.
USCIS did not mail a “Failure to Appear Warning Letter” to you after you failed to appear for an interview with an asylum office.
You failed to appear at a scheduled asylum interview with an asylum office and did not attempt to reschedule your asylum interview with an asylum office. In addition USCIS did not wait 45 days before issuing you a decision referring the asylum application to an immigration judge.
USCIS did not include a “Referral Notice for Failure to Appear” when referring your asylum application to an immigration judge after you missed an asylum interview and did not reschedule that interview within 45 days.
After you requested a determination on exceptional circumstances referenced in Section I.A.4. of the Agreement, USCIS did not provide you or your representative with a determination letter and did not notify the U.S. Immigration and Customs Enforcement Office of Chief Counsel.
After the asylum office reopened jurisdiction over your case, you missed an asylum interview but later established exceptional circumstances with an asylum office and an immigration judge dismissed proceedings. However, USCIS did not restart the time period for asylum adjudication and EAD eligibility on the date that you appeared for a rescheduled interview.
In adjudicating an application for employment authorization, USCIS did not credit you with the number of days that passed between the immigration judge’s initial denial of your asylum claim and the date of the BIA’s remand order.
Complete and submit an ABT Claim Form to USCIS and/or EOIR that identifies the basis for the alleged violation of the Settlement Agreement. This form is attached to the Agreement as Exhibit B.
Submit copies of any documents, applications, receipts, notices, and/or letters in your possession that are requested in the ABT Claim Form, or that you believe support your claim(s). More information is provided in the Providing Evidence section of this website;
Indicate which provision of the Settlement Agreement USCIS and/or EOIR did not follow on the ABT Claim Form. You must follow the instructions on the ABT Claim Form; and
Submit the claim form as soon as possible, but no later than 180 days following the denial of an application for employment authorization that is based on the alleged violation of the terms in the Settlement Agreement that pertain to your claim.
You must submit documents that prove the elements of your claim, as required based on the nature of your claim and the guidance provided in the ABT Claim Form.
1. Incorrectly Denied Form I-765:
If your Form I-765 was denied on or after December 3, 2013, and you believe it was denied because of an incorrect calculating of the 180-day asylum EAD Clock under the Agreement, submit your signed ABT Claim Form and all requested documents to:
DHS USCIS - Nebraska Service Center P.O. Box 87526 Attn: ABT Claim Review Lincoln, NE 68501
2. Missed Asylum Interview:
For claims that:
USCIS failed to take certain steps it agreed to after an asylum applicant missed an interview with the USCIS Asylum Office; and/or
USCIS did not make the notice about employment authorization for individuals with pending asylum applications available to the asylum applicant upon referral to the immigration court,
Please submit your signed ABT Claim Form with all requested documents and attachments in your possession, to the USCIS Asylum Office where you missed your asylum interview.
3. Claims with EOIR:
For claims that pertain to:
Lodging or the attempt to lodge an asylum application with an immigration court clerk at a time other than an immigration hearing; and/or
Receipt of the Joint Notice regarding employment authorization for individuals with pending asylum applications,
Submit your signed ABT Claim Form and all requested documents to:
Executive Office for Immigration Review Office of General Counsel ABT Claim Review 5107 Leesburg Pike, Suite 2600 Falls Church, VA 20530
There is no filing fee for eligible ABT class members.
Within 45 days of receipt of a claim form, USCIS and EOIR will mail you and/or your representative, if any, a Notice of Preliminary Findings or a Final Notice.
Notice of Preliminary Findings
This notice will request that you provide additional evidence supporting your claim, and will explain:
Why USCIS or EOIR has initially concluded that you are not a class or subclass member; and/or
Why USCIS or EOIR has initially concluded that your claim does not amount to a violation of the agreement.
If USCIS and/or EOIR sends a Notice of Preliminary Findings, you will have 30 days (the supplementation period) to submit additional written evidence or information to correct any deficiencies in your claim. USCIS and/or EOIR will send a Final Notice to you and/or your representative after the supplementation period has passed and you have not responded, or within 30 days of receiving any supplemental documents or information from you.
This notice will include the results of USCIS’s and/or EOIR’s investigation of the facts you have submitted and will include:
A determination of whether you are a class or subclass member;
If you are a class or subclass member, a determination of whether a violation of the agreement occurred;
A description of any corrective action that USCIS and/or EOIR has taken or intends to take to correct the violation, if any; and
If USCIS or EOIR determines that you are not a member of the class or a subclass member, or have not stated a claim under the Agreement, instructions regarding seeking review of that determination or any corrective action.
Claim Not Resolved
If you believe that your claim has not been resolved, you have 30 days from the date USCIS and/or EOIR mailed your Final Notice to negotiate with USCIS and/or EOIR in good faith to resolve any remaining disputes.
Once 30 days have passed, if you believe your claim was not resolved, you may apply to the U.S. District Court for the Western District of Washington for enforcement of the Settlement Agreement. This may be done only after you file a claim form and negotiate in good faith. Before applying, you must notify USCIS and/or EOIR that you intend to apply to the District Court for the enforcement of the Settlement Agreement.
Establishing Good Cause or Exceptional Circumstances
You must establish good cause if you need to reschedule your asylum interview prior to the date of your interview, on the date of the interview, or within 45 days after the interview date, or if your interview has already been rescheduled on one or more occasion.
Good cause is defined as a reasonable excuse for being unable to appear for an asylum interview. What may be a reasonable excuse for one applicant may not be reasonable when looking at the circumstances of another applicant. In reviewing whether there is good cause for your failure to appear at your interview, the asylum office considers the facts and circumstances of each case individually. Repeated requests to reschedule are discouraged and may affect the determination of good cause.
If you establish good cause, the asylum office will reschedule your asylum interview for a later date and will notify you in writing of the new interview date, time and location. The rescheduling of your interview will stop the 180-day asylum Employment Authorization Document (EAD) Clock either on the date that the asylum office cancels your interview or on the date of your interview, whichever occurs earlier. The 180-day asylum EAD Clock will remain stopped until you appear for your rescheduled interview.
If you do not establish good cause your reschedule request will be denied in writing. You must attend your scheduled asylum interview or the asylum office will treat your case as a missed interview (failure to appear). If you already missed your interview and you are not in lawful immigration status, 46 days from the date of your missed interview your asylum application will be referred to an immigration judge for adjudication in removal proceedings before the EOIR. If you are in lawful immigration status, your asylum application will be administratively closed and dismissed 46 days from the date of the missed interview.
You must establish exceptional circumstances in order to reschedule your asylum interview if more than 45 days have passed since your interview.
Exceptional circumstances are defined in the Immigration and Nationality Act, section 240(e)(1) to include such circumstances as:
Battery or extreme cruelty to you or your child or parent;
Serious illness of you, your spouse, child or parent; or
The death of your spouse, child, or parent.
Other less compelling circumstances are not classified as exceptional circumstances.
Exceptional circumstances are not only limited to the examples provided in the INA § 240(e)(1). The asylum office will examine the facts and circumstances of your case to determine if you have demonstrated exceptional circumstances.
To request that the asylum office find exceptional circumstances for your failure to appear at your interviewyou must:
Submit a written explanation to the asylum office by mail, fax, or email. Your explanation must describe in detail the exceptional circumstances which caused your failure to appear. You must also include an explanation for any delay between your missed interview date and your request to reschedule your interview because of exceptional circumstances.
Include any available documents that support your explanation. These documents may include, but are not limited to, medical records, police reports, and birth or death certificates.
Any document that is not in English must be accompanied by a full English language translation, along with a certification by a translator that the translation is complete and accurate, and that the translator is competent to translate from the relevant language into English.
After Your Request is Submitted
The asylum office will carefully consider your submission. There are three possible results:
If the asylum office does not have enough information to make a determination, the office may request more evidence from you, or request you come to the asylum office for an interview relating to your exceptional circumstances submission. The asylum office will send you a “Request for Additional Information;”
The asylum office finds exceptional circumstances and sends you a “Determination Demonstrating Exceptional Circumstances;” or
The asylum office does not find exceptional circumstances and sends you a “Determination of Failure to Demonstrate Exceptional Circumstances” notice.
Establishing Exceptional Circumstances
The asylum office will notify you in writing of the determination and the next steps in the process.
If you are in lawful immigration status, the asylum office will reopen your asylum application and reschedule you for your interview. The asylum office will mail you a new interview appointment notice in the near future. Your 180-day asylum EAD Clock will be restarted on the date you attend a rescheduled asylum interview.
If you are not in lawful immigration status and are in removal proceedings, jurisdiction over your asylum application will remain with the immigration court until certain steps are taken, and the immigration court and Immigration and Customs Enforcement (ICE) decide whether to dismiss your case.
Because you demonstrated exceptional circumstances for your failure to appear at your asylum interview, your 180-day asylum EAD Clock may be restarted if your removal proceedings are dismissed by the Immigration Court and the asylum office reopens your asylum application. The asylum office will restart your 180-day asylum EAD Clock on the date you attend a rescheduled asylum interview.
Requesting Dismissal of Removal Proceedings
If you wish to have USCIS reopen your case and consider your asylum application, you must contact the Immigration and Customs Enforcement Office of Chief Counsel (ICE OCC) handling your case before or at your next hearing. You must provide them with a copy of your “Determination Demonstrating Exceptional Circumstances” notice stating that USCIS has found that you have demonstrated exceptional circumstances for missing your asylum interview. Contact information for the ICE OCCs is available on ICE’s website.
You may then request that the ICE OCC join in your motion to dismiss removal proceedings. USCIS cannot ensure that all motions will be granted. The decision whether to join in a motion to dismiss is a matter within the ICE OCC’s discretion and is decided on a case-by-case basis. If the ICE OCC does not join in your motion to dismiss, you may file your own motion to dismiss with the immigration court, or you may make a verbal request at a hearing with an immigration judge.
The decision to grant your motion to dismiss rests with the immigration judge regardless of whether the ICE OCC joins in the motion. Please note that all immigration court filings must follow local court requirements and the requirements in the EOIR’s Immigration Court Practice Manual, which is available at www.justice.gov/eoir.
WARNING: If you are before the immigration court in removal proceedings, jurisdiction over your asylum application is with the immigration court. Jurisdiction will remain with the immigration court unless the immigration judge grants a motion to dismiss your removal proceedings. You must attend all scheduled hearings with the immigration court or you may be ordered removed from the United States.
Removal Proceedings Dismissed
If USCIS has issued you a Determination Demonstrating Exceptional Circumstances, and if the immigration judge grants the motion to dismiss removal proceedings, the USCIS asylum office will reopen your asylum application and reschedule you for an interview. Once your removal proceedings have been dismissed, you may expedite the rescheduling of your asylum interview with the asylum office by mailing, emailing, or faxing a copy of the immigration judge’s order dismissing removal proceedings to the asylum office listed on your notice. For asylum office addresses and contact information, see the “Asylum Office Locator”. The asylum office will restart your 180-day asylum EAD clock on the date you attend a rescheduled asylum interview.
Immigration Proceedings Not Dismissed
If the immigration judge denies the motion to dismiss your immigration proceedings, jurisdiction over your asylum application will remain with the immigration court and USCIS cannot reopen your asylum application.
You are not eligible to apply for or renew employment authorization because you failed to appear for a scheduled asylum interview before an asylum officer. (See 8 CFR 208.7(a)(4)). Your 180-day EAD asylum Clock stopped on the date you failed to appear for your interview and will not be restarted. Please be advised that any EAD issued to you by USCIS based on a pending asylum application will terminate at the expiration of the EAD listed on the card or 60 days from the date of the immigration judge denied your motion to dismiss, whichever date is later.
Failure to Establish Exceptional Circumstances
If you do not establish exceptional circumstances the asylum office will send you a “Determination of Failure to Demonstrate Exceptional Circumstances” notice. The asylum office cannot reschedule your asylum interview. Jurisdiction over your asylum application will remain with the immigration court.
WARNING: You must attend all scheduled hearings with the immigration court or you may be ordered removed from the United States.
You will not be eligible to apply for or renew employment authorization because you failed to appear for a scheduled asylum interview before an asylum officer, and failed to demonstrate exceptional circumstances for missing your asylum interview. (See 8 CFR 208.7(a)(4)).
Your 180-day EAD asylum Clock stopped on the date you failed to appear for your interview and will not be restarted. Please be advised that any EAD issued to you by USCIS that is based on a pending asylum application will terminate at the expiration of the EAD listed on the card or 60 days from the date of the “Determination of Failure to Demonstrate Exceptional Circumstances” notice, whichever date is later.
A copy of your Form I-589 and any additional material that you previously submitted in case the asylum office is missing any of this information;
Any additional items you have available that document your claim and that you have not already submitted with your application;
An interpreter if you are not able to continue with the interview in English,
Your spouse and/or children under 21, if they were included in your asylum application as derivatives at the time you filed your application;
They must bring any identity, travel or other supporting documents they have in their possession.
Although you are required to list all of your family members on your application, the only family members you need to bring to the interview are those who will be included as derivatives in the asylum decision.
A certified translation of any document that is not in English;
Any document in a language other than English must be accompanied by an English translation that the translator has certified as complete and correct,
The translator must certify that he or she is competent to translate the language used in the document into English.
If you do not speak English you will be interviewed through an interpreter who you bring with you to the interview.
We do not provide any interpreters during the asylum interview, except if you are hearing-impaired. If you are hearing impaired and need assistance in obtaining an appropriate interpreter, contact the asylum office with jurisdiction over your case in advance of your scheduled asylum interview.
You must bring an interpreter if you do not speak English well enough to be interviewed in English. The interpreter must be fluent in English and a language you speak fluently and must be at least 18 years old.
The following individuals cannot serve as your interpreter:
Your attorney or representative;
A witness testifying on your behalf at the interview; or
A representative or employee of the government of your country.
The regulation relating to interpreters can be found at 8 CFR 208.9(g).
If you do not bring a competent interpreter to your interview and you cannot speak English, your interview will be canceled and rescheduled. This is considered a delay caused by you and your 180-day Asylum Employment Authorization Document (EAD) Clock will stop until you appear at your rescheduled interview with a competent interpreter.
Although we do not provide interpreters for the interview, we use contract interpreters to monitor asylum interviews at local asylum offices and other locations by telephone. In general, the role of the contract interpreter is limited to monitoring your interpreter’s interpretation. Contract interpreters may be expected to occasionally interject if your interpreter fails to provide adequate, accurate, and neutral interpretation.
Bringing an Attorney or Representative to Your Interview
You have the right to bring an attorney or representative to your asylum interview and to immigration proceedings before the immigration court, at no cost to the U.S. government. You may obtain a list of pro bono (free or reduced cost) attorneys and community-based, non-profit organizations that may be available to assist you by:
Visiting the U.S. Department of Justice, Executive Office for Immigration Review’s (EOIR) website at www.justice.gov/eoir/ra.htm. This site provides information on the Recognition and Accreditation Program.
Attorney or Representative Is Unavailable for the Interview
The filing of a G-28 does not prevent asylum offices from processing an application even if your attorney is not present. If an asylum office denies your request to reschedule an interview and your attorney is not available for the interview, you can either sign a waiver and continue with the interview without your attorney or accept referral to the immigration court. If you accept referral to the immigration court, your case will be treated as though you failed to appear at your asylum interview. Although you have the right to have an attorney or representative present at the interview, you are responsible for ensuring that your attorney/representative is present for the interview.
Assistance Completing Form I-589
Representatives of the United Nations High Commissioner for Refugees (UNHCR) may be able to assist you in identifying individuals who can help you complete your Form I-589. Please contact the UNHCR for more information:
United Nations High Commissioner for Refugees 1775 K Street, NW, Suite 300 Washington, DC 20006 Telephone: (202) 296-5191 Website: http://www.unhcr.org/
What to Expect on the Day of Your Interview
Your interview will generally last at least an hour, although the time may vary depending on your case. You will be asked to take an oath promising to tell the truth during the interview. Your interpreter will also take an oath promising to interpret accurately and truthfully. The asylum officer will verify your identity, ask you basic biographical questions and the reasons you are applying for asylum, and questions to determine if any bars will prevent you from applying for or being granted asylum.
The asylum officer will know that it may be difficult for you to talk about traumatic and painful experiences that caused you to leave your country. However, it is very important that you talk about your experiences so that the asylum officer can determine whether you qualify for a grant of asylum.
The information you share with the asylum officer is confidential. In general, information related to your asylum claim cannot be shared with third parties without your written consent or specific authorization by the Secretary of Homeland Security. There are certain exceptions to this rule, however, which can be found in the confidentiality regulation (See 8 CFR 208.6). For more information on confidentiality and the asylum process, please visit our Fact Sheet on Asylum Confidentiality.
You and your attorney or representative, if you have one present, will have time at the end of the interview to make a statement or add any additional information. A decision on your case will not be made at the asylum interview. For the legal regulations governing asylum interviews, see 8 CFR 208.9.
Missing Your Interview (Failure to Appear)
Shortly after you miss your interview, you will receive a “Failure to Appear Warning Letter” from the asylum office where your interview was scheduled to take place. This letter explains how to reschedule your missed interview and the consequences of missing your interview on your180-day Asylum EAD Clock.
You must request to reschedule your interview within 45 days from your interview date. If 45 days have passed and the asylum office has not received a request to reschedule your interview, your case will either be:
1) Referred to an immigration judge for adjudication in removal proceedings before the EOIR if you are not in lawful immigration status; or
2) Administratively closed and dismissed, if you are in lawful immigration status.
Because you no longer have an asylum application pending with USCIS, you are not eligible to apply for or renew employment authorization based on a pending asylum application. Your 180-day Asylum EAD Clock stopped on the date you failed to appear for your interview.
If you are in unlawful immigration status, the asylum office will mail you a “Referral Notice for Failure to Appear.” If you are in lawful immigration status, you will receive a “Dismissal of Asylum Application – Failure to Appear.”
Rescheduling Your Interview
If you need to reschedule your interview, you must either:
Mail, fax or email a letter to the asylum office where your interview is scheduled to be held, or
Go to that asylum office and complete an In-Person Reschedule Request.
The asylum office will not honor a request to reschedule received by telephone. A request to reschedule an asylum interview must include the reason for the request and any relevant evidence.
The asylum office will reschedule an interview if it is your first rescheduling request and your request is received before your interview date. You will be notified in writing whether or not your interview will be rescheduled. You will also receive a new interview appointment notice with the new interview date, time and location.
You must prove that your request for rescheduling is due to good cause, if you need to reschedule:
On the date of your interview,
On or within 45 days after the interview date, or
Your interview has already been rescheduled on one or more occasion.
You must prove that your request for rescheduling is due to exceptional circumstances if:
More than 45 days have passed since your interview.
Exceptional circumstances are a higher standard than good cause. If you do not establish exceptional circumstances for your failure to appear at your asylum interview, you may be ineligible for employment authorization. (See 8 CFR 208.7(a)(4)). More information about establishing good cause and exceptional circumstances is available in the Establishing Good Cause or Exceptional Circumstances Web page.
Rescheduling your interview will stop your 180-day Asylum EAD Clock either on the date that the asylum office cancels your interview or on the date of your interview, whichever occurs earlier. The 180-day Asylum EAD Clock will remain stopped until you appear for your rescheduled interview.
NOTE: If the interview notice was not mailed to the most recent address you provided to USCIS, then the asylum office will reschedule the interview without requiring that you show good cause or exceptional circumstances.
You may be an ABT class member if you are an asylum applicant. The ABT class is made up of a general class, also known as the Notice and Review Class, and four subclasses. The general class includes noncitizens in the United States:
Who have filed or will file (or will lodge at an immigration court window) a complete asylum application with USCIS or the Executive Office for Immigration Review (EOIR); and
Whose asylum applications have not been approved or finally denied (with all rights of review or appeal exhausted); and
Whose applications for employment authorization based on their status as asylum applicants have been or will be denied because of alleged insufficient notice and/or opportunity for review.
To be an ABT class member, you must meet the requirements of the general class and one or more of the following subclasses. These include:
Prolonged Tolling Subclass
Missed Asylum Interview Subclass
The Hearing Subclass includes noncitizens:
Who have been placed in removal proceedings before an immigration judge; and
Who have filed or lodged, sought to lodge, or who will lodge or seek to lodge a complete defensive asylum application with the immigration court prior to a hearing before an immigration judge; and
Whose eligibility for employment authorization has been or will be calculated from the date the asylum application was or will be filed at a hearing before an immigration judge.
Prolonged Tolling Subclass
The Prolonged Tolling Subclass includes asylum applicants:
Who are not detained in immigration custody; and
Whose time creditable toward employment authorization is stopped or will be stopped due to a delay attributed to the applicant, including failure to accept the next expedited hearing date offered by the immigration court; and
Who have, or will have, allegedly resolved the issue causing the delay before the next scheduled hearing; and
Whose time creditable toward employment authorization will remain stopped despite the alleged resolution of the delay.
Missed Asylum Interview Subclass
The Missed Asylum Interview Subclass includes asylum applicants who have failed or will fail to appear for an asylum interview with USCIS, and as a result will not accrue time creditable toward eligibility for employment authorization following the date of the missed asylum interview.
The Remand Subclass includes noncitizens:
Whose asylum applications were or will be denied by the immigration court before they have been pending at least 180 days, not including delays caused or requested by the applicant;
Who appeal their asylum denial to the Board of Immigration Appeals (BIA) or a federal court of appeals and receive a remand to the immigration judge for further adjudication of their asylum claim; and
Who have not or will not be credited with additional time toward eligibility for employment authorization following the initial asylum denial.
How the Agreement Affects Adjudication of Asylum and EAD Applications
The Agreement applies to
EAD applications filed by asylum applicants on or after December 3, 2013; and
Asylum applications filed affirmatively with USCIS or defensively with EOIR on or after December 3, 2013.
The Agreement will affect:
Affirmative Asylum Applications filed with USCIS By December 3, 2013, USCIS asylum offices will:
Mail a “Failure to Appear Warning Letter” – As soon as possible after an asylum applicant misses an asylum interview.
The letter will explain how to reschedule a missed asylum interview and how missing the interview affects EAD eligibility.
The letter will also list the steps the applicant must take to establish good cause for failing to appear at the asylum interview, as well as the effect of not responding to the warning letter within the required 45-day period.
Mail a “Referral Notice for Failure to Appear” – If more than 45 days have passed since the missed interview and the asylum office has not received a rescheduling request.
This notice explains how EAD eligibility is affected once USCIS has referred the case to the immigration court.
This letter also explains the steps the asylum applicant must take to establish that failure to appear at the asylum interview was because of exceptional circumstances, which is a higher standard than good cause for failing to appear. More information is available in the “Missing Your Interview” section of the Preparing for Your Asylum Interview web page.
Determine Whether Exceptional Circumstances Exist for Failure to Appear – Upon request by an asylum applicant following referral to immigration court, if the asylum office finds that the asylum applicant missed the interview because of exceptional circumstances, the asylum office will issue a determination letter to the applicant and his or her representative and notify U.S. Immigration and Customs Enforcement Office of Chief Counsel (ICE OCC). The applicant may then request ICE OCC’s agreement to join in a motion to terminate the removal proceedings.
If the immigration judge dismisses the removal proceedings, and the asylum application is returned to the asylum office, the asylum office will reopen the asylum application and take jurisdiction over the applicant’s case.
The 180-day asylum EAD Clock, which stopped on the date of the applicant’s failure to appear for the asylum interview, will restart on the date the applicant appears for the rescheduled interview at an asylum office.
Defensive Asylum Applications Filed with EOIR By December 3, 2013, EOIR will do the following for individuals placed in removal proceedings before an immigration judge:
Revise the Operating Policies and Procedures Manual (OPPM) 11-02 – The Asylum Clock from Chief Immigration Judge Brian O’Leary to state that an immigration judge must make the reasons for a case adjournment clear on the record. The revised OPPM will also provide that an immigration judge must allow a minimum of 45 days between the date of the last master calendar hearing and the individual hearing date when setting individual hearing dates in expedited non-detained cases with a pending asylum application. The revised OPPM (OPPM 13-02, The Asylum Clock), can be found at www.justice.gov/eoir.
Lodged not Filed Applications: EOIR immigration court clerks will date stamp and stamp “lodged not filed” on a complete asylum application brought to an immigration court window before a hearing, and will send the lodging date to USCIS. USCIS will treat the lodging date as the filing date for EAD eligibility purposes, and the applicant will begin to accrue time toward employment authorization eligibility from that date forward (excluding delays requested or caused by the applicant after the application is lodged). Individuals must still file the asylum application with the immigration judge at a hearing.
Adjudication of Form I-765 by USCIS Service Centers Beginning on December 3, 2013, the Agreement will affect the adjudication of EAD applications by USCIS service centers in the following ways:
The Agreement requires USCIS service centers to treat the lodging date on applications “lodged not filed” under the new procedure as the filing date for purposes of calculating EAD eligibility.
Applicants will accrue time creditable toward EAD eligibility from the new lodging date and going forward, excluding any delays requested or caused by the applicant.
Once eligible to apply for employment authorization, applicants who have lodged an asylum application may submit an application for employment authorization to USCIS, and should include with their submission a copy of the asylum application that the EOIR immigration court clerk stamped “lodged not filed,” which will be considered as evidence of filing for employment authorization purposes only under the new procedure.
The Agreement requires USCIS service centers to credit asylum applicants in the United States whose cases are remanded to an immigration judge for adjudication of an asylum claim with the number of days elapsed between the date the asylum application was initially denied by an immigration judge and the date of the Board of Immigration Appeals (BIA) remand order. This includes BIA remands to an immigration judge following an appeal to a U.S. Court of Appeals. The asylum applicant will continue accrue time creditable toward employment authorization going forward from the date of the BIA remand order, excluding any delays requested or caused by the applicant.
When eligible to apply for employment authorization, an applicant whose case has been remanded must attach to his or her application for employment authorization a copy of the complete Board of Immigration Appeals (BIA) order remanding his or her case to the immigration court for adjudication of the asylum claim, as evidence that the case remains under administrative review.
Joint Notice and Contact Information EOIR and USCIS will provide a Joint Notice to asylum applicants. The Joint Notice will contain general information on employment authorization, including:
Information on where to obtain case-specific information;
How hearing adjournment codes affect EAD eligibility; and
Where to direct requests to correct hearing adjournment codes and inquiries relating to EAD eligibility.
This website contains information that will help you:
Determine if You are an ABT Class Member,
Prepare for Your Asylum Interview ,
Establish Good Cause and Providing Exceptional Circumstances,
The Settlement Agreement in B.H., et al. v. United States Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.), also known as the ABT Settlement Agreement, as revised, or the “Agreement,” resulted in changes to USCIS and Executive Office for Immigration Review (EOIR) processes and procedures that affect how USCIS’s Asylum Division adjudicates Form I-589, Application for Asylum and for Withholding of Removal, and how USCIS’s Service Center Operations Directorate adjudicates Form I-765, Application for Employment Authorization. These changes generally relate to eligibility for an Employment Authorization Document (EAD) for asylum applicants, and to calculation of the 180-day Asylum EAD Clock. Individuals who are ABT class members are affected by the Agreement.
The 180-Day Asylum EAD Clock
The 180-day asylum EAD Clock measures the time period during which an asylum application has been pending with the USCIS asylum office and/or EOIR. USCIS service centers adjudicate the Form I-765 and calculate the 180-day asylum EAD Clock to determine eligibility for employment authorization. Asylum applicants who applied for asylum on or after January 4, 1995, must wait 150 days before they can file a Form I-765, if the application remains pending. An asylum applicant is not eligible to receive an EAD until his or her asylum application has been pending for at least 180 days. This 180-day period, which is commonly referred to as the 180-day asylum EAD Clock, does not include any delays applicants request or cause while their applications are pending with an asylum office or immigration court.
Examples of delays caused by an asylum applicant include, but are not limited to:
Failure to appear for fingerprint processing,
Failure to appear for an interview with an asylum officer,
Failure to appear for a hearing with an immigration judge, and
Other types of delays either before an asylum office or an immigration judge
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:
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.
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:·
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 (CBP) 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 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.
Key Differences Between “Affirmative” and “Defensive” Asylum Process
Individual has not been placed in removal proceedings before an Immigration Judge
Individual has been placed in removal proceedings before an Immigration Judge
Individual affirmatively submits Form I-589 to USCIS
Is placed in removal proceedings by an Asylum Officer;
Is placed in removal proceedings for immigration violations; or
Tried to enter the United States without proper documents and was found to have a credible fear of persecution or torture
If the individual was referred by USCIS, the asylum application already filed will carry over to the immigration judge. If the individual did not yet submit an asylum application he or she will submit it to the Immigration Judge.
Individual appears before a USCIS Asylum Officer for a non-adversarial interview
Individual appears before an Immigration Judge with the Executive Office for Immigration Review for an adversarial, court-like hearing
Individual must provide a qualified interpreter for the asylum interview
The Immigration Court provides a qualified interpreter for the asylum hearing and all other court proceedings.
The USCIS Asylum Division’s Training Section provides training on a national level as well as on a local level in the field offices.
All Asylum Officers are required to attend and complete the Asylum Officer Basic Training Course (AOBTC), which is a national training course that is specific to asylum adjudications. Instructors for this course are from HQ Asylum Division and field Asylum offices, as well as non-governmental organizations, law schools, and the UNHCR.
The training course includes topics such as international refugee law and the U.S. Asylum Program’s role in world-wide refugee protection, U.S. asylum law and its interpretation by the Board of Immigration Appeals and federal appellate courts, interviewing techniques, researching country of origin information, and decision-making/writing. Separate training sessions address interviewing survivors of torture, identifying possible cases of victims of trafficking, handling cases of children, and handling claims that may be specific to women. The training course also includes lessons regarding the Asylum Program’s history, organizational structure, mission, goals, and values, ethics, and an overview of the Asylum Program’s process and procedures. Other topics covered include fraud identification and evaluation techniques, and national security concerns.
Supervisory Asylum Officers are also required to attend a two-week asylum-specific training that updates supervisors’ knowledge of asylum-related case law and improves their case law application skills. The training also focuses on achieving greater consistency and effectiveness in evaluating asylum officers’ interviews and written work, and strengthening feedback skills, interpersonal skills, and workload management skills.
The Asylum Division also requires that regular training be conducted in each of the field offices. There are up to two Quality Assurance and Training Officers (QA/Ts) in each of the eight field Asylum Offices. QA/Ts are responsible for coordinating weekly training sessions and training new Asylum Officers. QA/Ts are required to attend a two-week instructor training course to learn methodologies for student-centered instruction and to improve their skills as training coordinators for the field offices. The Asylum Division requires that each field Asylum Office hold a weekly training session of up to four hours. The topics are determined by the needs of the particular office and include the same variety of topics as listed above. Also, headquarters may request that training on a particular issue, such as new case law or new procedures, be conducted in all Asylum Offices.
All asylum office staff are also required to attend USCIS trainings that are mandatory for USCIS employees and which are offered through the USCIS Academy. This includes the 5½-week BASIC training required of all USCIS immigration officers.
The Asylum Division also provides support and encourages staff to attend professional and/or career development training activities available to all USCIS employees through the USCIS Academy, from non-governmental organizations and government offices outside the Asylum Division. Asylum Officers may also receive permission from their local office management to attended related local training classes or professional conferences sponsored by sources other than the Asylum Division or USCIS Academy. In addition, the Asylum Division has arranged for several special asylum-related professional development opportunities for its senior staff, including participation in the following:
Certificate in Refugees & Humanitarian Emergencies, Georgetown University, Washington, DC
Summer School in Forced Migration, Oxford University, Oxford, England
These various training opportunities contribute to enhancing the skills, knowledge, and professionalism of the Asylum Division staff.
Asylum Officer Basic Training Course Lesson Modules
The Asylum Officer Basic Training Course lesson modules are used to train Asylum Officers at the mandatory 5-week AOBTC.
The AOBTC lesson modules were developed and are updated by the Asylum Division following a standardized procedure for U.S. Government training initiatives. The materials used in the course have been reviewed by a number of subject matter experts, including Asylum Division staff, the USCIS Office of the Chief Counsel, law professors, immigration attorneys in private practice, and practitioners working with refugees and asylees.
The lessons are updated as the need arises to address new case law, statutory requirements, and procedural directives. These lessons are not only used for the instruction of newly-hired Asylum Officers, but are also used to articulate and communicate Asylum Division guidance on the substantive adjudication of asylum cases, and the lesson modules are also used as a reference tool for Asylum Officers as they perform their duties.