How to Obtain Asylum in the United States

Qualifying for and obtaining asylum is a complex and fact specific process and the information below is a general overview. Please consult with an attorney at Theta Law Firm with your specific facts. An attorney is vital to help guide you and your family through the process of obtaining asylum and eventually permanent residency.

What is Asylum?

Obtaining asylum means getting the protection of a nation for an individual who has left their native country for fear of current or future persecution. In order to be eligible for asylum in the United States, the feared persecution must be based on race, religion, nationality, political opinion, or membership in a social group. Additionally, an individual may apply for asylum in the United States ONLY if that person is arriving in or is already physically present in the United States.

Two Types of Asylum

There are two types of situations in which an individual can try to obtain asylum: affirmative or defensive. Each process will be described in greater detail below. Remember that both the affirmative and defensive asylum processes are very involved and complex. An attorney is extremely valuable in the asylum process to make sure you have the best chance of being granted the right to stay in the United States. Contact a lawyer at Theta Law Firm to discuss your options.

1. Affirmative Asylum

  • Generally, no matter how you arrived in the United States or your current immigration status, you may apply for affirmative asylum unless you already have and you have been denied (unless you can show a change in circumstance).
  • You must apply for asylum within a year of your last arrival into the United States unless it can be shown:

    • a. That a change in circumstance[1] materially affects your eligibility or that there was an extraordinary circumstance[2] that delayed filing;
      b. That you filed for asylum in a reasonable amount of time given those extraordinary circumstances.
  • Submit a completed Form I-589, Application for Asylum and for Withholding of Removal with USCIS[3].
  • You will then receive a confirmation of this submission and a notice to visit the nearest application support center for fingerprinting. You will also receive an interview notice usually 21 days after you submitted your application.
  • Go to your fingerprinting appointment as set out in your notice.
  • You will likely be interviewed within 43 days of USCIS having received your completed Form I-589. Bring your attorney or representative to the interview and your spouse or children as well as any witnesses that will be speaking on your behalf. If you do not speak English, you must bring your own interpreter to the interview.
  • Wait for the decision as to whether you will be granted asylum status.
  • If you are not granted asylum, and do not have legal immigration status, USCIS will issue Form I-862, Notice to Appear, and forward the case to an Immigration Judge at the Executive Office for Immigration Review. The Judge will conduct a brand new hearing on the issue of your asylum that is completely independent of the USCIS decision.
2. Defensive Asylum (more often used)

  • To be eligible for defensive asylum, you must currently be in removal proceedings in immigration court.
  • People in the defensive asylum process are there either because they were denied asylum through the affirmative process, or they were apprehended in the United States without proper legal documentation or having violated their immigration status.
  • The defensive asylum process takes place in a courtroom setting (unlike the affirmative asylum process).
  • The Judge hears arguments from the asylum seeker or their counsel and then from the United States government.
  • The Judge then makes a decision whether to grant asylum status, grant some other relief, or to remove the individual from the United States. The decision of the Judge is allowed to be appealed by either side.
Asylum Appeal Process

If the Immigration Judge rejects the asylum request, the asylum seeker may appeal to the Board of Immigration Appeals. If the Board denies the petition, a further appeal is possible to the Ninth Circuit Court of Appeals. It should be noted that winning the case on appeal is extremely difficult, but the applicant is allowed to remain in the United States until the appeals are exhausted.

Asylum for Family Members

An asylum applicant may include his or her spouse and children who are in the United Sates on the application at the time of filing or any time before a final decision is made. If a child is included, the child must not be married and must be under twenty-one years of age.

If your children or spouse are not in the United States and you are granted asylum, you may petition for you children and spouse to be allowed into the United States and be granted asylum by filing Form I-730, Refugee/Asylee Relative Petition.[4] The petition must be filed within two years of you obtaining asylum.

Working While Seeking Asylum

A person seeking asylum status may not work while the decision is pending unless:

    1. 150 days have passed since you filed the complete application (not counting delays caused by you); and
    2. No decision has been made regarding the application.
If the above occurs, the asylum seeker can file for employment authorization by filing Form I-765, Application for Employment Authorization[5].

If you are granted asylum status, you may work immediately.


In general there are no fees associated with applying for asylum apart from fees that may be incurred when seeking counsel.

Getting a Green Card After Obtaining Asylum

One year after you have been granted asylum, you can file for a permanent resident green card. In order to do this, you must file Form I-485, Application to Register Permanent Residence or to Adjust Status[6].

Each family member granted asylum must file a separate I-485 application.

There are constant developments in who is eligible for asylum and what types of 'persecution' is considered to qualify an individual to seek asylum. The attorneys at Theta Law Firm are apprised of the latest changes in the law and can help you make novel and highly skilled arguments to give you the best chance at obtaining asylum.

[1] A change in circumstance according to 8 CFR § 208.4(a)(4) refers to (a) change in conditions in the asylum seekers native country; (b) change in the asylum seekers circumstances that materially affects the asylum seekers eligibility for asylum, such as changes in applicable United States laws, or activities that the asylum seeker becomes involved in that put him or her at risk of persecution in the native country, (c) change in status as a dependent on another person's asylum application through marriage, divorce, death, or becoming twenty-one years old.
[2] The following are some statutorily accepted extraordinary circumstances that would allow for delayed filing: (a) serious illness or mental or physical disability; (b) legal disability; (c) ineffective assistance of counsel (an affidavit must be included from the individual seeking asylum explaining the agreement that the person had with counsel and what counsel would be doing for the individual and how counsel did not comply with this agreement; counsel must also be notified of this allegation and given time to respond; and the person seeking asylum must state whether a complaint has been filed with the appropriate discipline authority and if not, why not; (d) the asylum seeker was given Temporary Protected Status, lawful immigrant or nonimmigrant status before filing for asylum; (e) the asylum seeker did file an application within the deadline, but it was rejected as not properly filed, was returned for corrections, and was re-filed in a reasonable period of time; (f) there was a death or serious illness of the asylum seekers legal representative or immediate family member. 8 CFR § 208.4(a)(5).
[3] Form I-589 can be found at:
[4] Form I-730 can be found at:
[5] Form I-765 may be found at:
[6] Form I-485 may be found at:

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