Ukrainians who are thinking about applying for asylum in the United States should be aware of the filing deadlines. In general, “affirmative asylum” applications must be filed within one (1) year of the applicant’s most recent arrival in the United States. There are a few exceptions, discussed below.

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.

A person who is not in removal proceedings may apply for “affirmative asylum” through USCIS. On the other hand, 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.

To learn more about asylum protection, legal criteria, and the application process, read our article here: https://ukrainetaskforce.org/can-ukrainians-seek-asylum-in-us/

Which Ukrainians Are Exempted from the One-Year Asylum Filing Deadline?

Ukrainians who entered the U.S. on a valid nonimmigrant visa, such as a B-2 tourist visa or an F-1 student visa, are not required to file their asylum applications within one year of entry. However, individuals with a valid visa status are required to apply within one year after their visa stay expires.

Generally, maintaining humanitarian parole, Temporary Protected Status (TPS), or another valid immigration status for a reasonable period before filing the asylum application is considered an extraordinary circumstance (discussed more below). Ukrainians whose humanitarian parole is still valid when they file for asylum may be eligible for the extraordinary circumstances exception to the one-year filing deadline. Ukrainians who file their asylum applications after their parole expires may still qualify for an exception to the one-year filing deadline if they filed for asylum within a reasonable period of time after their parole expired.

Note that humanitarian parole is only valid as long as the parolee has not violated any of the terms. Individuals who are in violation of the parole terms or who do not comply with requirements of parolees (such as registering for the U.S. Selective Service and submitting required health attestations after arrival) will not be in valid parole.

What Does “Within One Year of Arriving” Mean?

Individuals who are subject to the one-year filing deadline must file their applications for asylum within one year of their most recent entry into the United States. If the individual came to the United States but later departed, then returned again, the one-year timeline begins to count on the date of the individual’s most recent arrival. Applicants have one year from their last entry into the U.S. to file their asylum application.

Individuals who do not have proof of their date of entry should file Form I-589 within one year of a date before they entered the United States for which they can show proof.

Which Forms Must Be Filed within the One-Year Deadline?

Individuals applying for asylum must file Form I-589, Application for Asylum and for Withholding of Removal within the one-year deadline. Form I-589 must be accompanied by:

  • copies of documents showing the applicant’s identification (birth certificate, identity card from the home country or most recent country of residence, driver’s license, etc.)
  • two copies of the applicant’s passport
  • copies of U.S. immigration documents (I-94 Arrival/Departure Record)
  • a recent passport-size photograph

Which Documents May Be Filed after the One-Year Deadline?

Applicants do not need to submit all the supporting evidence at the same time as they submit their Form I-589, Application for Asylum and for Withholding of Removal. Supporting evidence includes documents that verify the general conditions of the applicant’s home country and that corroborate the facts of the applicant’s specific claims.

Applicants can wait until they are closer to their USCIS asylum interview or their individual hearing date in immigration court to submit their supporting evidence. Attorneys often wait until the judge asks for additional documents before filing any supporting documentation so that the asylum applicant has sufficient time to develop their case.

What Is Considered a Timely Filing?

Asylum applications are considered filed when the designated government entity reviewing the asylum application receives Form I-589, Application for Asylum and for Withholding of Removal.

For affirmative applications filed directly with USCIS, the Asylum Office will consider the date USCIS received the application as the filing date for purposes of determining whether the application was filed within one year. However, if applicants can show by clear and convincing evidence (for example, with a certified mail receipt) that they mailed the application within one year, the mailing date will be considered the filing date.

For defensive applications filed with the immigration court, the day the application is received by the court at the court window, by mail, or in open proceedings will be considered the filing date.

In order for an asylum application to be considered filed on time, USCIS or the immigration court must receive the application by the day before the first anniversary of the applicant’s most recent entry date into the United States. For example, an individual who last entered the U.S. on October 1, 2022 must make sure their application is received to USCIS or the immigration court no later than September 30, 2023. If their application is received on October 1, 2023, it will not be considered to be filed on time.

Are There Exceptions to the One-Year Filing Deadline?

An applicant may be able to file their asylum application more than one year after arriving in the United States if they are able to demonstrate either “changed circumstances” which materially affect the applicant’s eligibility for asylum or “extraordinary circumstances” relating to the delay in filing the application on time.

“Changed circumstances” are factors that have caused the applicant to fear returning to their home country due to something that happened after they arrived in the United States. Changed circumstances that can materially affect the applicant’s eligibility for asylum include:

  • changes in the applicant’s country conditions, such as a change in the governing regime, new laws in the home country that criminalize the applicant’s behavior or characteristics, new policies of persecution toward specific groups of people, or a new humanitarian crisis that emerged
  • changes in the applicant’s personal circumstances, such as conversion to another religion, change in gender identity, change in sexual orientation, or changes in U.S. law that make the applicant eligible for asylum

“Extraordinary circumstances” are events or factors that prevented the applicant from filing the application until now. The applicant must demonstrate that they did not create the circumstances through their own action or inaction, that the circumstances directly related to the applicant’s failure to meet the one-year filing deadline, and that the applicant’s delay was reasonable based on the extraordinary circumstances present. Extraordinary circumstances can include:

  • Maintaining valid humanitarian parole, Temporary Protected Status (TPS), or another lawful immigrant or nonimmigrant status, until a reasonable period before the filing of the asylum application
  • If the applicant filed an asylum application prior to the expiration of the one-year deadline, but that application was rejected by USCIS as not properly filed, returned to the applicant for corrections, and was re-filed within a reasonable period thereafter
  • Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the one-year period after arrival
  • Legal disability, such as being an unaccompanied minor or suffering from a mental impairment during the one-year period after arrival
  • Ineffective assistance of counsel (this has very specific requirements)
  • Death, serious illness, or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family

Other extraordinary circumstances that may be considered include “severe family or spousal opposition, extreme isolation within a refugee community, profound language barriers, or profound difficulties in cultural acclimatization.”

The burden is on the applicant to prove the changed or extraordinary circumstances. The applicant must file the application within a reasonable time after the applicant becomes aware of the change in circumstances or experiences the extraordinary circumstances.

Generally, a lack of awareness about the one-year filing deadline is not considered a justification for an untimely filing of an asylum application. However, an applicant’s isolation within a refugee community, community and family stigmatization of certain protected grounds, and fear of discussing certain protected grounds because of past physical trauma, may be expanded to include lack of awareness based on these factors.

What Is Considered a “Reasonable” Time to File After the One-Year Deadline?

Applicants who meet an exception to the one-year filing deadline must still file their asylum applications within a “reasonable time” after they become aware of the change in circumstances or experience the extraordinary circumstances. What is considered a reasonable time depends on the facts of each case. Asylum officers try to determine whether a reasonable person under similar circumstances would have filed around the same time as the applicant. Factors they consider include the applicant’s education, long-lasting effects of illness, how long after the deadline the asylum application was filed, and when the applicant became aware of the changed circumstances.

For delays based on “extraordinary circumstances” due to having maintained valid humanitarian parole, Temporary Protected Status (TPS), or another valid immigration status, the Department of Justice has stated that waiting six months after an applicant’s lawful immigration status has expired is clearly not reasonable. Accordingly, Ukrainians who seek asylum after their TPS, humanitarian parole, or other valid immigration status has already expired are urged to file their asylum application before six months have passed following the expiration of their status or valid stay.