Asylum is a form of protection that allows individuals to stay inside the United States instead of being deported to their home country or a different country. Federal law provides that individuals who have suffered or fear persecution in their home countries because of a “protected ground” can apply for asylum in the United States. Asylum is a protection offered to foreign nationals who cannot return to their home country due to persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group. Individuals who are granted asylum may apply for permanent residence (a green card) to resettle in the United States one year after their asylum is granted.

The right to seek this protection was established in the 1951 United Nations Convention Relating to the Status of Refugees and implemented in the 1967 United Nations Protocol Relating to the Status of Refugees. Congress codified refugee and asylee protection in the United States when it enacted the Refugee Act in 1980.

Asylum may be granted to an applicant who establishes past persecution or a well-founded fear of future persecution in the country of origin because of one five protected grounds (race, religion, nationality, political opinion, or membership in a particular social group). The persecution must be inflicted by the government of the country of origin or by an entity that their government is unwilling or unable to control. Additional factors, such as the ability to relocate within the country of origin or firm resettlement in another country, may make asylum nonviable. Asylum is a discretionary benefit. In exercising discretion, the adjudicator can take into account negative factors, including violations of immigration law or criminal law.

To apply for asylum in the U.S., individuals must be physically present in the U.S. or be seeking entry into the U.S. at a port of entry. Individuals seeking asylum in the United States must file Form I-589, Application for Asylum and for Withholding of Removal.

A person who is not in removal proceedings may apply for “affirmative asylum” through USCIS within one year of their most recent arrival into the United States, although 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. U.S. Citizenship & Immigration Services (USCIS), adjudicates affirmative requests for asylum.

If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, the applicant is referred to the immigration court for removal proceedings, where they may renew the request for asylum through the defensive process and appear before an immigration judge.

A person who is already in removal proceedings (i.e. received a notice to appear in court or is in detention awaiting deportation) may apply for “defensive asylum” by filing the application with an immigration judge. The Department of Justice, through the Executive Office for Immigration Review (EOIR), holds jurisdiction over asylum applications pending in removal proceedings, with some limited exceptions.

A person who was placed in expedited removal proceedings, received a positive credible fear determination, and whose case was retained by USCIS for further consideration of their eligibility for asylum in an Asylum Merits Interview does not need to file Form I-589. For more information on expedited removal, visit the USCIS page here:

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:

  1. Past persecution or a “well‐founded fear” of future persecution
  2. At least one of the 5 relevant “protected grounds” (race, religion, nationality, membership in a particular social group, or political opinion)
  3. 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
  4. 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 due to the record-number of asylum applications already in the pipeline (over 1.5 million). There is also 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.