Immigration
Definition
A form of legal protection available to individuals already in the United States who cannot return to their home country due to persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.
Asylum is a protection granted under both U.S. and international law that allows individuals who have suffered persecution — or have a well-founded fear of future persecution — to remain in the United States. The legal standard derives from the 1951 Refugee Convention and is codified in the Immigration and Nationality Act. Unlike refugee status (which is applied for from abroad), asylum is sought from within the U.S. or at a port of entry.
There are two pathways: affirmative asylum, where the applicant proactively files Form I-589 with USCIS within one year of arriving in the U.S.; and defensive asylum, where the claim is raised as a defense against removal in immigration court. Affirmative applications are heard by USCIS asylum officers in a non-adversarial interview setting; defensive applications are heard by immigration judges and resemble an adversarial court proceeding with government attorneys present.
To be granted asylum, the applicant must demonstrate that they belong to a protected ground (race, religion, nationality, political opinion, or particular social group), that the persecution was or would be carried out by the government or a group the government cannot or will not control, and that the fear of persecution is both subjectively genuine and objectively reasonable. LGBTQ+ individuals, domestic violence survivors, and members of specific ethnic minorities have all been recognized as qualifying particular social groups in certain circuits, though case law varies.
Successful asylum seekers are granted withholding of removal and protection from return (non-refoulement). After one year in asylum status, asylees may apply for lawful permanent residence. During the asylum application process, applicants can apply for an EAD after 180 days have elapsed.
Asylum law is one of the most high-stakes and technically complex areas of immigration practice. The one-year filing deadline is jurisdictional and nearly impossible to waive; missing it can permanently bar an otherwise valid claim. The particular social group standard is highly litigated and circuit-specific, requiring careful legal framing of the claim.
For business owners who may employ asylum seekers or asylees — or for individuals navigating the process themselves — having experienced immigration counsel is essential. Asylum hearings before immigration judges are adversarial proceedings, and applicants without attorneys are denied at dramatically higher rates than represented ones.