How Does An Immigrant Qualify For Asylum?

As the political debate regarding immigration heats up in the United States Congress, there is bi-partisan agreement that immigrants here both legally and illegally are seeking better lives for themselves and their families. However, if someone entered the U.S. illegally or overstayed their visa, their status puts them in constant danger of deportation. One way someone in the U.S. illegally might be able regain legal status is to apply for asylum.

Who qualifies - and how

The Immigration and Nationality Act defines those who qualify for asylum as anyone who can demonstrate a well-founded fear that they will be persecuted for their race, religion, nationality, membership in a particular social group or political opinion if they were to return to their homeland.

The application for asylum must be made while the immigrant is on U.S. soil. He or she will need to fill out a Form I-589 and submit it to the United States Citizenship and Immigration Services Bureau in the Department of Homeland Security. If deportation proceedings have already begun against an immigrant out of legal status, he or she can still seek asylum before an immigration judge from the Department of Justice's Executive Office for Immigration Review.

Obstacles to asylum

Although the Immigration and Nationality Act gives the U.S. Attorney General discretion in granting asylum, it also establishes conditions for mandatory denial of asylum. Immigrants will not be granted asylum if:

  • they have participated in the persecution of others
  • they have been convicted of a serious crime and are dangerous to the community
  • they have already been firmly settled in a country other than their homeland
  • there are reasonable grounds to regard them as a danger to national security
  • they are known terrorists or criminals.

Arguments for changing the way the U.S. grants asylum

Our current asylum criteria were established during the Cold War, when the most common seekers of asylum were fleeing such socialist or communist countries as the former USSR, Cuba and Vietnam. Today, refugees are more likely to be from the Mideast, northern Africa and south Asia. Some experts, seeing the changing global geo-political landscape, advocate for revisions to U.S. asylum policy. An argument can be made that would-be terrorists could use asylum to enter the country. Others fear that it's becoming increasingly difficult to distinguish the persecuted from the persecutors. And still others think asylum has become an expedient alternative to the country's more arduous and time-consuming immigration process.

Getting legal U.S. status through asylum

The federal government reviews each asylum application and makes decisions to grant or deny asylum on a case-by-case basis. If you are currently facing deportation, have questions about your immigration status, or are seeking asylum the most important factor under consideration is the application itself. It is imperative that you accurately state your claim and be certain it is filed with the correct agency.

Whether you're seeking asylum or following the traditional immigration process, an experienced immigration attorney will discuss all possible options with you and help you make sure you complete all the necessary steps to gain legal status, if that option is available to you.