Understanding Asylum in the U.S. 

There are different ways that people can come to the United States, and one of those is asylum. 

Asylum has some similarities to another program called Temporary Protected Status (TPS) which is discussed more below, but also some differences. 

The following is a guide to what asylum means legally in the U.S. 

The Basics of Asylum

Each year, people come to the U.S because they’re seeking protection from persecution or they fear they’ll be persecuted because of race, nationality, religion, membership in a particular social group, or political opinion. 

A person can only file an asylum application if they’re present in the U.S. and aren’t a citizen. 

If you’re eligible for asylum, you might be allowed to stay in the U.S. The application is Form I-589, and you have to file it within a year of arriving in the United States. 

If you’re applying, you can include your children and spouse if they’re in the U.S. at the time you file or anytime up until the final decision is made on your case. Your child has to be unmarried and under the age of 21 to be included in your application. 

Asylum is meant to be a form of protection by the government of the United States. It may be granted to someone fleeing their country, but this area of law is complex. 

The right to seek asylum from another country stemmed from World War II and the Holocaust. After that, many nations around the world vowed that they wouldn’t close their doors to people who needed protection. 

The United States passed a federal law in 1980, the Refugee Act, for people fleeing persecution. 

People Have to Come to the U.S. or The Border

If someone is seeking asylum, they have to come to the border. They need to ask U.S. officials to screen them at a port of entry. They can also enter the country without inspection and declare a fear of persecution. 

In both situations, if someone is seeking asylum, they have to go through a background and security check and then a long process to prove they have a verifiable fear of persecution. If someone loses their case and any appeals, they are deported. 

Asylum is a discretionary status, so some people can be denied even if they meet the definition of refugees. 

The Process

There are three ways that someone can apply for asylum in the U.S., primarily. 

The first is affirmative asylum. If someone is not in removal proceedings or they’re designated as an unaccompanied child, they can go through the affirmative application process through USCIS. If the USCIS asylum officer doesn’t grant the application, then the applicant is referred for removal proceedings. At that point, the person can renew their request for asylum through what’s called the defensive process, and they have to go in front of an immigration judge. 

The next process is for defensive asylum. If someone’s in removal proceedings, they can apply for defensive asylum. To file for defensive asylum, the person would file an application with an immigration judge at the Department of justice in the Executive Office for Immigration Review. 

Appointed counsel isn’t provided in immigration court for people even if they can’t get an attorney on their own. 

Finally, a third category of the process is expedited asylum. Someone who is taken into custody within 14 days of entering the country and placed in expedited removal proceedings may now use a new process that started in 2022. In this situation, a USCIS asylum officer reviews and adjudicates the claim before the person is put into formal proceedings for removal. 

Someone who goes through this process and is then denied asylum is referred to immigration court. 

If someone comes to the U.S. without inspection has to typically apply through the defensive or expedited process. All three processes require the person to be physically present in the U.S. or at a port of entry. 

What Happens at the Border?

Through 2-2-, most people encountered at a port of entry or near the border went through expedited removal. 

Since March 2020, some people seeking asylum have been expelled under Title 42. This policy is related to the pandemic. 

If DHS is without the capacity to detain a person for a credible fear interview, they’re released directly at the border. In this situation, the person usually receives a notice to appear in court, and they go through the process for defensive asylum. 

Part of the process is a credible fear screening, which is an interview that an asylum officer conducts. 

If an asylum officer decides the asylum seeker’s fear of torture or persecution is credible, then the person has shown they have a significant possibility to establish asylum eligibility. 

Credible Fear

Under the new, expedited asylum process, again, if someone passes their credible fear interview, they’re sent back to USCIS for an asylum merits interview, that’s separate. Then, the officer decides if they’re going to grant asylum. If the person is granted asylum at this interview, the process ends. If not, they’re referred to immigration court. 

There’s another term as well—reasonable fear. If someone comes back to the U.S. illegally after a previous removal order, or they’re a noncitizen convicted of some crimes, they may have to go through a process called reinstatement of removal. As a way to protect someone seeking asylum from summary removal before their claim for asylum is heard, those who are in the reinstatement of removal proceedings may express their fear of returning to their country to be afforded a reasonable fear interview. 

To show reasonable fear, the person must demonstrate there’s a reasonable chance they could be tortured in the removal country or persecuted. 

TPS vs. Asylum

Temporary Protected Status or TPS is similar to asylum, but there is a specific list of countries designated for this. If you’re from a country that is designated for TPS, you can apply for either status or both. TPS is often the better priority when comparing the two. 

Once your application for TPS is received, then the time you spend in the U.S. isn’t considered illegal anymore, so you don’t have a fear of a run-in with law enforcement. 

TPS is temporary immigration status, but you can legally work. If you apply for asylum, you aren’t allowed to work right after applying to USCIS unless you have a valid work permit already. You can only work under asylum status if your application is approved or you’ve waited at least 365 days with no decision. 

Asylum has more long-term benefits, while TPS may have more short-term benefits for people when they’re eligible. 

Immigration Inspection

If someone is seeking to enter the U.S., they usually go through inspection at the Ports of Entry by officers who determine if ’they’re admissible. The inspection process will include the work performed related to the entry of U.S. citizens and aliens into the country. An officer has to determine the nationality and identity of all the applicants for admission. 

They are responsible for preventing ineligible individuals from coming in, including terrorists, traffickers, and criminals. 

The officers have the authority to question any person coming into the U.S. under oath. They have the authority to perform a search without a warrant, and if they think there are reasons for exclusions, they will let them know during the search. 

How Long Is the Asylum Process?

The asylum process can take years to finish. A person may file an application or pass their credible or reasonable fear interview and get a hearing or interview date that’s not for years. Backlogs were already in existence before the pandemic, and now because of COVID-19 closures and restrictions, they’ve gotten even longer. 

As of April 2022, there were nearly 471,000 affirmative asylum applications pending. 

During the process, asylum seekers do have the right to stay in the U.S. if their claim is pending. The U.S. government has said it has the right to detain asylum seekers during this time instead of releasing them into the community, but some courts have struck this down. 

Temporary Protected Status is given to countries when there’s an armed conflict that’s ongoing, an environmental disaster, an epidemic, or other temporary but extraordinary conditions. 

While TPS is a temporary benefit that doesn’t lead to status as a lawful permanent resident, the program doesn’t prevent someone from later applying for nonimmigrant status or applying for an adjustment of status based on a petition for immigration. It also doesn’t prevent someone from applying for other immigration benefits or protections they may be eligible for. 

Applying for TPS doesn’t affect an asylum application or any other benefit and vice versa. Additionally, if someone is denied their asylum application, or any other benefit, it doesn’t affect the ability to register for TPS, but the grounds for denial could lead to TPS denial as well. 

Some of the countries currently designated for TPS include Afghanistan, El Salvador, Honduras, Somalia, Ukraine, and Venezuela.