Understanding Affirmative vs. Defensive Asylum Applications

The United States has a long-standing tradition of offering asylum to individuals fleeing persecution in their home countries. Understanding the complexities of immigration law can be challenging for employers seeking to hire talented foreign workers. When understanding the difference between affirmative and defensive asylum applications for potential employees, attorney Wogwu at Wogwu Law is here to help. In this blog post, Attorney Wogwu will break down the critical distinctions between these two asylum application processes, empowering you to make informed decisions for your workforce.

What is Asylum?

Asylum is a legal status granted to foreign nationals who are unable or unwilling to return to their home country due to a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

There are two main pathways to obtaining asylum in the United States:

  1. Affirmative Asylum Application: This is a proactive approach where an individual files an asylum application with USCIS (United States Citizenship and Immigration Services) before removal proceedings begin.
  2. Defensive Asylum Application: This is a reactive approach where an individual already in removal proceedings applies for asylum with an immigration judge.

Understanding Affirmative Asylum Applications

An affirmative asylum application is ideal for foreign nationals currently residing in the United States and meeting the eligibility criteria for asylum. Here’s a breakdown of the key points:

  • Eligibility: To be eligible for affirmative asylum, you must be physically present in the United States and file your application within one year of your last arrival (with some exceptions).
  • Application Process: The affirmative asylum application process involves filing Form I-589, Application for Asylum and Withholding of Removal, with USCIS. This form requires detailed information about your background, the reasons you fear persecution, and any supporting evidence.
  • Benefits: If your application is approved, you will be granted asylum status, receive employment authorization, and become eligible to apply for a green card after one year.

Understanding Defensive Asylum Applications

A defensive asylum application is used when an individual faces removal proceedings and fears returning to their home country. Here’s a closer look:

  • Eligibility: While the 1-year filing deadline is a critical consideration for defensive asylum applications, exceptions may apply in certain cases. It is imperative to seek the counsel of an immigration attorney immediately upon being placed in removal proceedings to explore potential remedies for cases where the 1-year deadline has lapsed and to understand your legal options fully.
  • Application Process: A defensive asylum application is typically filed during a hearing before an immigration judge. Your attorney will present your case and argue why you qualify for asylum.
  • Benefits: If the immigration judge grants your asylum application, you will be released from removal proceedings and be eligible to apply for the same benefits as someone who received affirmative asylum.

Choosing the Right Path

The best action for you and your potential employee will depend on their circumstances. Here’s a general guideline:

  • Affirmative Asylum: If your potential employee is already in the United States and meets the eligibility criteria, filing an affirmative asylum application is generally the preferred approach. This allows them to proactively seek asylum status and avoid the stress of removal proceedings.
  • Defensive Asylum: If your potential employee is already facing removal proceedings, a defensive asylum application may be their only option. However, it’s crucial to act quickly and consult with an immigration attorney to explore all available legal avenues.

Don’t Wait to Seek Help

Immigration law is complex, and the asylum application process can be challenging. Attorney Wogwu at Wogwu Law understands the intricacies of affirmative and defensive asylum applications. Attorney Wogwu can guide you and your potential employees through the process, ensuring all applications are filed correctly and deadlines are met.

If you have a potential employee eligible for asylum, contact Wogwu Law today at 919-964-5472 or online to schedule a consultation.  Attorney Wogwu represents clients throughout the United States and abroad. By seeking legal guidance early on, you can help your employees go through the complexities of the asylum process and increase their chances of obtaining a safe and secure future in the United States.