Being granted asylum means being able to permanently escape persecution by lawfully living in the United States. It also means the chance to find a path to U.S. citizenship. But even before you are granted asylum, applying for affirmative asylum can also prevent you from being considered unlawfully present in the U.S.
Note that this only applies to applications for affirmative asylum—that is, applying for asylum if you are already physically present in the United States, and not currently in removal proceedings.
What does it mean to have “unlawful presence” in the United States?
Generally, if you (1) entered the U.S. without authorization (like without a visa), or (2) continue to stay in the United States after your authorized period of stay has expired (like staying after your visa has expired), you begin to collect time considered as “unlawfully present” in the United States. 8 U.S.C. § 1182(a)(9)(B)(ii). The amount of time during which you are unlawfully present can prevent you from coming back to the U.S. if you ever decide to leave. The length of time that you are barred from coming back to the U.S. depends on the total amount of time of your unlawful presence:
- If you are unlawfully present in the U.S. for more than 180 days but less than one year, and you decide to leave the U.S.—then you cannot come back to the U.S. for the next 3 years. 8 U.S.C. § 1182(a)(9)(B)(i)(I).
- If you are unlawfully present in the U.S. for more than one year, and you decide to leave the U.S.—then you cannot come back to the U.S. for the next 10 years. 8 U.S.C. § 1182(a)(9)(B)(i)(II).
- If you are unlawfully present in the U.S. for more than one year, and you are removed from the U.S. (instead of leaving the U.S. voluntarily)—then you are barred from coming back to the U.S. permanently. 8 U.S.C. § 1182(a)(9)(B)(i)(II).
How does applying for affirmative asylum help with unlawful presence in the U.S.?
As soon as you file a bona fide application for asylum, you will no longer be considered as unlawfully present in the U.S. The U.S. code states:
No period of time in which an alien has a bona fide application for asylum pending under section 1158 of this title shall be taken into account in determining the period of unlawful presence in the United States under clause [] unless the alien during such period was employed without authorization in the United States.
8 U.S.C. § 1182(a)(9)(B)(iii)(II).
The USCIS has issued policies enforcing that law, and courts have recognized those policies. See Flores v. United States, 108 F. Supp. 3d 126, 130 (E.D.N.Y. 2015) (“According to the official policy of the United States Citizenship and Immigration Services (‘USCIS’), an ‘alien, whose bona fide application for asylum is pending, is in an authorized period of stay and does not accrue unlawful presence for purposes of section 212(a)(9)(B) of the [Immigration and Nationality] Act.’”); see also People v. Ziankovich, 433 P.3d 640, 646 (Colo. 2018) (“Asylum applicants normally may remain in the United States while an application is pending.”).
Is there an exception to the rule that a bona fide asylum application prevents accumulation of unlawful presence time?
There is an exception to the above: as the latter part of the provision states, it does not apply if you work without authorization while your application is pending. One court has explained:
Relevant here, the Immigration and Nationality Act (“INA”) creates a statutory exception for those aliens who file an asylum application. 8 U.S.C. § 1182(a)(9)(B)(iii)(II). In that circumstance, “[t]he period of authorized stay begins on the date the alien files a bona fide application for asylum,” Adjudicator’s Field Manual ch. 40.9 (F)(ii), and continues until that application has been adjudicated[]. However, this tolling provision applies only if the alien complies with all requirements, including refraining from working without authorization during the pendency of his or her asylum application. 8 U.S.C. § 1182(a)(9)(B)(iii)(II).)
United States v. Horma, Criminal No. 3:18cr18, at *12-13 (E.D. Va. Sep. 4, 2018)
In sum: filing a bona fide I-589 application for affirmative asylum can prevent you from accumulating unlawful-presence time in the U.S.—unless you work without authorization while your application is pending.
