Common Questions About Asylum | Rights of Asylum Seekers

Since President Donald J. Trump took office, it has been harder for people who have fled persecution in their own countries to get permission to stay in the United States, called asylum, in the United States. That it is why it is so important for people seeking asylum here to know their rights.

Here’s what you should know about seeking asylum in the United States.

Can an asylum seeker apply for a Green Card?

The answer to this question in most cases is, “no.” By definition, as an asylum seeker you are still waiting for the government or immigration court to approve your request for asylum. If you are awaiting this decision while you are physically in the United States and you or you do not have any other official permission to be here, such as a current student, tourist or employment visa, you are not eligible to apply for lawful permanent residency. You can only do so one year after the government grants your request for asylum.

Can I apply for asylum after one year?

Under U.S. immigration law, anyone seeking asylum must request it within one year after their last entry into the United States; or within one year after the expiration of a valid visa. Although it is possible to apply for asylum after this point, the government rarely makes exceptions to this rule.

To apply for asylum after the one-year deadline, you must prove that you were unable to meet the deadline because of a “changed circumstance,” or an “extraordinary circumstance.”

Examples of “changed circumstance” include but are not limited to:

  • Significant changes in your country that make you afraid to return now even though you had no reason to fear persecution there when you first came to the U.S. This could be war that began after you came to the U.S., or a recent change in government resulting in persecution of your ethnic group.
  • New risk of persecution in your home country due to your participation in political or religious activities after you left.
  • Amendments to U.S. immigration/asylum laws that allow you to apply for asylum now even though you were ineligible before.

Examples of “extraordinary circumstance” include but are not limited to:

  • Serious mental or physical illness that rendered you incapable of meeting the one-year filing deadline.
  • The serious illness or death of a close relative or legal guardian.
  • You filed the application within a year, but it required corrections, and then you refiled it more than one year after your arrival.

If you claim that one of these exceptions applies to you, you must also prove that you filed your asylum application within a “reasonable time” after your situation changed. However, there is no specific definition of “a reasonable time” in this context. Instead, it will depend on the immigration judge or asylum officer’s assessment of your case.

Can you apply for asylum at a U.S. embassy?

Technically, the answer is  “no.” This is because U.S. embassies are located in other countries and you must physically be in the United States or at a U.S. port of entry to request asylum.

However, depending on the seriousness of your situation, you may be able to get temporary protection at a U.S. embassy in your country. This is called temporary refuge, and it is used to shield people at immediate risk of physical harm in exceptional circumstances. It is also available to anyone in immediate danger of persecution based on factors including but not limited to their race, religion, ethnicity, political beliefs, affiliation with a particular social group.

If the U.S. embassy or consulate grants you temporary refuge, you’ll be allowed to stay there after it closes for the day and at least until the immediate danger passes or you choose to leave. Within this context, temporary refuge does not include getting any assistance leaving the country in question.

Do asylum seekers have rights?

Again, it is important to explain the difference between an asylum seeker and an “asylee.” An asylum seeker is someone who wants to or has officially requested permission to stay in the United States in order to avoid persecution in their own country. An “asylee” is someone whose application for asylum has been approved.

As long as you have a legitimate fear of persecution in your country, you have a legal right to ask for asylum in the United States. But as long as you are awaiting a decision, your legal rights to certain benefits are limited or non-existent. For example, you will not qualify for federally funded benefits such as food stamps and Medicaid until you receive asylum. Your eligibility for state funded assistance will depend on the policies in the state where you are living.

To learn more about your legal rights if you or a family member has been detained after seeking asylum at the U.S. border, contact a qualified immigration attorney.