How to Seek Asylum in the U.S.: A Step-by-Step Guide

September 2015

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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“Be the change that you wish to see in the world.”
― Mahatma Gandhi

How to Ask for Asylum

Author: US Immigration attorney Alena Shautsova

Asylum is a status that is given to a person who cannot or is not willing to return to his/her country. Asylum law in most countries is defined by the International Convention on Refugees that was adopted by many countries, some with reservations. There are just a couple of countries which are not parties to the Convention (Saudi Arabia, for example)… It means that most countries have to abide by the Convention’s norms and promote regulations to implement the Convention.

The Convention defines who is a refugee, a stateless person, a displaced person and outlines the basic protections that a receiving country should provide to people seeking asylum or refuge (access to courts, freedom of religion practice, freedom of association, etc.).

In most countries, the procedure of conveying an asylee or refugee status starts with a detailed application form. In some countries (Germany, for example, and to the extent Canada), a person who is seeking asylum is entitled to some benefits (pocket money in Germany, up to about $200 for example). Some countries (like the U.S.) do not provide any benefits to those who are applying for asylum, and even an employment authorization may be given only six months after the application has been pending. See asylum process in the US: http://www.shautsova.com/immigration-applications/asylum-process-guide.html.

The U.S. asylum law is not defined by the Convention only, but also consists of regulations by USCIS, Board of Immigration Appeals opinions, and opinions by different courts. The U.S. is a Federation, and in each Federal circuits, the law may be applied a little different. It is crucial for certain asylum claims that involve disputable legal theories.

To ask for asylum in the U.S. one must be physically present in the U.S. or at the port of entry. Most people who ask for asylum at the port of entry will be detained. If a person is in the U.S., the detention is rare. The asylum seeker must submit form I-589, and supporting documents. The form has to be submitted with 2 copies and an extra copy of each dependent.

The most difficult part of the form is the one asking for asylum basis. An applicant must check off as many grounds as applicable, because if one of the grounds will be omitted and later an applicant would want to claim it he/she will likely have to submit a new form, missing the one year deadline for asylum claim.

In the US, the asylum process is confidential. Nobody can disclose the fact of asylum submission and its results. The U.S. government cannot alert the country an applicant is seeking asylum from about the application.

One who filed for asylum in Canada and was denied, is likely to be denied in the U.S. as well due to the special agreement between these countries. Also, a person who resides and firmly resettled in a safe country, will be denied asylum in the US, even if his/her own country is a dangerous place to return to. For example, a citizen of Spain, who is also a citizen of Ukraine, cannot successfully claim asylum from Ukraine in the U.S.

If one is outside the U.S. and would like to ask for a refugee status, he/she should do it through the U.S. Consulate. Most likely, however, consulate will direct such a person to the local UNHCR mission (a UN institution responsible for refugees and asylees’ issues).

The local United Nations’ NGOs and projects are usually good sources of information for those who would want to know more about the refugee and asylee procedures.

The U.S. does provide certain benefits to those who were able to prove their asylum claims. Such benefits are medical insurance, public assistance (food stamps), an employment authorization and travel authorization.

Understanding Temporary Protected Status

Author: Deportation Attorney Alena Shautsova

Temporary protected status or TPS is a form of deffered action, a permission by a US government to stay in the US whose countries’ conditions are such that do not permit safe return of its nationals. To be able to apply for TPS, a person has to be a national of the country which was designated by the U.S. government as TPS eligible. The most recent such designation was afforded to Yemen. The complete list of the designated countries can be found at www.uscis.gov.

A holder of the TPS status may apply for work authorization and travel permit. A person can qualify for TPS even if he/she entered the US illegally. It is the timing of designation of the country for the TPS that matters. Usually, a person can apply for TPS if he/she is in the U.S. physically at the time of the TPS designation and a person submits his/her application within the specified time period.

A person does not need to be in the U.S. illegally to apply for TPS. It means that if one is in the U.S. on a B, F, H, E visa, or if one has a pending asylum claim or even in removal proceedings, he/she can apply for TPS. The grant of TPS does not change the other status the person held.

TPS however does not allow its beneficiaries to apply for social security or Medicaid benefits.

The courts and USCIS in the U.S. are divided as to if a TPS beneficiary may adjust his/her status , if he/she is an immediate relative of a US citizen. While the USCIS says “NO”, at least three federal courts said “YES”: See Flores v. USCIS, (June 4, 2013 6th Cir) and Medina v. Beers ( ED Pa 2014), and Ramirez v. Dougherty:  United States District Court, Western District of Washington (May 30, 2014).

Another important “feature” of the TPS is that its holder may apply for cancellation of removal once TPS expires, however, the time in TPS does not count towards cancellation of removal without special findings by the Attorney General.

A complete list of eligible countries can be viewed here: http://www.uscis.gov/humanitarian/temporary-protected-status.

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