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What should I know about asylum and refugee status?

Authored By: GeorgiaLegalAid.org
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Asylum and refugee status laws in the U.S.

What should I know? +

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What is asylum and refugee status?

Asylum and refugee status are both protections for non-U.S. citizens who face persecution in their home country. If you are granted asylum or refugee status:

  • You can legally live and work in the United States,

  • You may be eventually able to gain U.S. citizenship,

  • You can apply for your spouse and children to join you in the U.S.

 

The main difference is where you are when you apply for these protections. 

  • Asylum seekers are either at a U.S. border or already in the United States when they apply. There are two ways to get asylum in the U.S.:

  • Affirmative asylum. This means you apply for asylum with the USCIS.

  • Defensive asylum. This happens when you are already in removal proceedings and you request asylum as a defense to deportation.

  • Refugees apply for protected status from outside of the United States. Refugees are generally people who have already fled their country and cannot or will not return. 

 

This article only gives a brief overview of the refugee and asylum process. The United States admits a limited number of refugees and asylum seekers each year. The process to get asylum or refugee status is very complicated. Not understanding the process can have serious consequences for non-U.S. citizens. For example, if you apply for asylum and are not qualified, you could be reported to ICE for deportation. If you, or someone you know, wants to apply for asylum or refugee status, contact an immigration attorney first. In you are in Georgia:

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Who is eligible for refugee status or asylum in the United States?

You are eligible to apply for refugee status or asylum in the United States if:

  • You are unable or unwilling to return to your home country because you:

    • have been persecuted there in the past or 

    • have a well-founded fear that you will be persecuted if you go back.

  • The reason you have been (or will be) persecuted is due to your: 

    • race, 

    • religion, 

    • nationality, 

    • membership in a particular social group, or 

    • your political opinion.

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When can I apply for asylum?

You apply for asylum if you:

  • are at a port of entry to the United States or 

  • have been in the United States for less than one year.

    • There are very limited circumstances that may allow you to apply if you’ve been in the U.S. for more than a year. 

 

There are two general types of asylum applications-- affirmative and defensive asylum.

  • Affirmative asylum. This may happen when:

    • You enter the U.S. on a valid visa. Within a year of your arrival, you can apply for asylum with USCIS. It is important to talk to an immigration attorney before you apply. You will have an interview with USCIS and they will make a decision. You will get a letter telling you:

      • Your request for asylum is granted, or

      • You are ineligible for asylum. This is called a Notice of Intent to Deny (NOID). You may appeal this in writing within 16 days. If you do not, you will get a final denial letter. A final denial cannot be appealed.

    • You are in the U.S. illegally and apply for asylum. It is important to be represented by an immigration attorney. If your application is denied, you most likely will be deported. If you apply for asylum within one year of arrival, you will get an interview with USCIS. They will decide to either:
      • Refer your case to Immigration Court. The immigration judge will hear your asylum case. If it is ultimately denied, you will be deported. 

      • Grant your asylum application, or

    • You arrive at the border and request asylum. You will generally be transported to immigration detention facilities. The process should go as follows:
      • You have an interview with an asylum officer. If you state that you have a fear of returning to your home country, you should then get an interview with an asylum officer from USCIS. This is called a “credible fear” interview. This interview will decide if you should get a full hearing before an immigration judge. 

        • You should be given at least 48 hours to prepare for the interview.

        • The interview will happen over the phone, video, or in person.

        • An interpreter will be present to translate into your native language.

        • These interviews can be tricky. It is important to have an immigration attorney help you prepare and be present during the interview.

      • The asylum officer makes a decision.
        • If the officer decides you do have a credible fear, you will start the formal deportation process. This includes a hearing before an immigration judge. The judge will decide whether you are granted asylum

        • If the officer decides you do not have a credible fear, you may be deported immediately.

          • You or your lawyer may be able to challenge this decision. You can request a review by an immigration judge, or a re-interview with the asylum office.

 

  • Defensive asylum. Defensive asylum happens when you are in the U.S. illegally and are stopped or detained by ICE. You request asylum as a defense during your deportation proceedings. It is important to be represented by an immigration attorney during these proceedings. You may be detained while you wait for your immigration hearing. An immigration judge will decide:

    • To grant your asylum request, or

    • Deny your asylum application.

      • You have the right to appeal this decision.

      • If your appeals are denied, you will be deported.

 

Asylum applications can take as long as four years or more to process. 

  • If you have a pending asylum application, you can apply for work authorization after 150 days. 

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When can I apply for refugee status?

You apply for refugee status if you are: 

  • Currently outside the United States.

  • Of special humanitarian concern to the United States. Whether you qualify for this depends on the U.S. Refugee Admissions Program (USRAP). Currently there are three categories of people who are “of special humanitarian concern:”

    • People from any country who have a serious need for protection. These individuals are generally referred by the UN Human Rights Commission or another organization. This is called Priority 1.

    • An individual who is part of a group that has been designated for resettlement. This is called Priority 2. This might include: 

      • certain religious minorities who are in danger in their countries or 

      • Iraquis who worked for the U.S.

    • People from certain countries who have immediate family members in the U.S. The family member must have entered as refugees or been granted asylum. This is called Priority 3.

 

Refugee applications can take up to a year to process. 

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What are my rights and responsibilities as a refugee or asylee in the U.S.?

You have legal status as a refugee or asylee in the United States. This means that you have rights.

  • You have the right to be protected by the laws of the United States. These include:

    • Rights when confronted by law enforcement or immigration.

    • Right to be protected by the police.

    • Right to practice your religion.

    • Right to be free from discrimination.

  • You have the right to live and work in the United States. 

  • You have the right to apply for a Social Security Card,

  • You have the right to travel overseas, and 

  • You have the right to petition to bring family members to the United States,

  • After one year, you have the right to apply for a green card. 

    • Four years after you get a green card, you can apply for U.S. citizenship. 

  • You have the right to apply for some public benefits. You can apply for SNAP, Medical Assistance, TANF, or Refugee Cash Assistance (RCA).

    • As a refugee, you have a right to services through the Refugee Admissions Program (RAP). 

 

You have responsibilities, too. 

  • You are responsible for following the laws of the United States and your state. 

    • If you are convicted of a crime, you could be deported. Be sure to tell your lawyer about your immigration status if you are arrested.

  • You must file income taxes every year. 

  • You are responsible for informing USCIS any time you move. 

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What can I do? +

Contents


How can I apply for asylum?

You should consult with an immigration attorney before you submit an application for asylum. 

 

To apply for asylum:

  • File Form I-589, Application for Asylum or for Withholding of Removal.

    • You must submit a completed fingerprint card with your application.

  • After your application is received, you will then get fingerprinted. This is called a biometric services appointment. 

  • You will then be scheduled for an asylum interview with USCIS. 

  • For your interview, you should:

    • Bring the necessary documents,

    • Have an immigration attorney to represent you,

    • Bring your spouse and/or children if they are included in your application,

    • Ask for an interpreter if you need it.

 

If your application is denied, and you have legal status in the United States, you will be sent a Notice of Intent to Deny. 

  • You have 16 days to respond in writing either:

    • Why the claim should be granted, and 

    • Submit new evidence supporting your claim.

  • An asylum officer will consider your response and make a final decision. A final denial cannot be appealed.

    • If you don’t submit a response to the Notice of Intent to Deny, you will get a final denial. This cannot be appealed. 

    • You can reapply for asylum later if you can show your circumstances have changed. 

 

If your application is denied, and you do not have legal status, you will be referred to Immigration Court. During your immigration hearing, the Immigration Judge will consider your asylum claim as a defense to deportation. 

  • If the immigration judge orders deportation, you can appeal this decision with the Board of Immigration Appeals.

    • You have 30 days from the date of the deportation order to file your appeal. 

    • If the Board of Immigration Appeals denied your appeal, you can file further appeals with:

      • U.S. Circuit Court of Appeals, and

      • The U.S. Supreme Court. 

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How do I apply for refugee status?

The refugee application process includes several steps:

  • If you are in Priority 1, you must first be referred to USRAP. You can request a referral from:

  • Once you have a referral or if you are in another Priority category, you will then be pre-screened by a Resettlement Support Center. Here you will learn about the application process and get help preparing your case file. 

  • After the application is completed, you will be interviewed by a USCIS officer. The USCIS officer will decide whether you are eligible for resettlement. Before the decision, you will also have to clear a variety of U.S. security checks

  • If you are approved you will get:

    • A medical exam,

    • Cultural orientation,

    • Help with travel plans, and 

    • A loan for travel to the United States.

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Resources

Last Review and Update: Dec 11, 2020