Individuals seeking political asylum in the United States must file an Application for Asylum and for Withholding of Removal within one year of their arrival to the United States, though there are a few limited exceptions to the one-year filing deadline. In addition to the one-year filing deadline, there could be other bars to asylum such as firm resettlement in another country or criminal history.
A person may apply for asylum in the United States regardless of their country of origin or their current immigration status. In order to apply for asylum protection, applicants must show they cannot return to their home country because they have a credible fear of persecution there. Asylum seekers must establish that they have been persecuted or have a well-founded fear of persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion if returned to their country.
They must prove that the harm is from the government of their home country, or, from some person or group that the government of their home country cannot protect them from. To be eligible for asylum, the persecution must also be significant, such as unlawful or political detention, torture, violation of human rights, physical violence, or some type of severe non-physical harm.
Each asylum applicant bears the burden of proof to show all elements of his or her asylum claim:
- Past persecution or a “well‐founded fear” of future persecution
- At least one of the 5 relevant “protected grounds” (race, religion, nationality, membership in a particular social group, or political opinion)
- A “nexus” (cause and effect relationship) between the harm he or she suffered or fears, and the relevant “protected ground”
- ex. being arrested for protesting a government policy
- ex. being threatened with violence because he or she assisted the U.S. military
- The fact that the applicant’s home country’s government cannot or will not protect them.
If an applicant establishes past persecution, he or she is statutorily entitled to a presumption that they fear future persecution on that basis. The U.S. government then bears the burden of demonstrating changed circumstances to the applicant, their home country, and/or the viability of internal relocation in their home country.
Presently, fleeing war or violence in one’s home country is not a sufficient qualification for asylum protection in the United States absent other qualifying factors. For this reason, many Ukrainian nationals fleeing war could have difficulty meeting the requirements for asylum. However, each asylum application is considered individually based on the applicant’s unique facts and circumstances.
Asylum applications can take 4-5 years to adjudicate, and there is a significant risk of being rejected, so it could be beneficial to pursue multiple routes if an applicant seeks permanent residence in the U.S.
It is possible to apply for asylum concurrently with applying for other statuses. So, someone could potentially apply for asylum while applying to adjust their status through other channels, such as immediate relative, family preference, or employment-based visas. On the other hand, applications based on family reunification can vary in terms of processing time as well, depending on the category of familial relation and status of the U.S. relative when the application was filed. Likewise, applications for permanent residence based on employment can be another option, but they have their own challenges.
Even if any applicant has a weak case for asylum, they could still seek protection under the Convention Against Torture (CAT) or at least withholding of removal from the U.S. if they can establish that they have at least a 51% chance (more likely than not) of future persecution if returned to their home country.
“Asylum seekers must establish that they have been persecuted or have a well-founded fear of persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion if returned to their country.”
“Presently, fleeing war or violence in one’s home country is not a sufficient qualification for asylum protection in the United States absent other qualifying factors.”