The One-Year Asylum Filing Deadline and What to Do About It

The law requires that people who wish to seek asylum in the United States file their applications within one year of arriving here. See INA § 208(a)(2)(B). Those who fail to timely file are barred from asylum unless they meet an exception to the rule (they may still qualify for other—lesser—humanitarian benefits such as Withholding of Removal and relief under the United Nations Convention Against Torture).

If you arrived in the U.S. on this day, you are still eligible to apply for asylum, even if it seems like a hundred years ago.

So why do we have this rule? And what are the exceptions?

Congress created the one-year bar in 1996. Its ostensible purpose is to prevent fraud. If you really fear return to your home country, the theory goes, one year should be enough time to figure things out and get your application filed.

For most people, I suppose that this is true—they can ask questions, find help, and file for asylum within a year. But this is easier for some than for others. People who are less educated, people whose life experiences have taught them to mistrust and avoid authority, people who are isolated and socially disconnected, people who are depressed; such people might have a harder time with the one-year bar (and of course, many of these characteristics are common among asylum seekers). Others will have an easier time: Well-educated people, people who speak English, people who have a certain level of self-confidence, and people who are engaged with the community.

There are also certain populations that seem to have difficulty with the one-year rule. At least in my experience, many LGBT asylum cases were filed after the one-year period. I suspect there are several reasons for this. For one, an immigrant’s primary connection to mainstream America is her community in the U.S. But if she is afraid to reveal her sexuality to her countrymen living here, and she cannot get their help with the asylum process, she may be unable to file on time. Also, there is the coming-out process itself. People in certain countries may not have even conceptualized themselves as gay, and so the process of accepting their own sexuality, telling others, and then applying for asylum may be lengthy and difficult.

Asylum seekers like those discussed above are sometimes blocked by the one-year rule, but in these cases, the rule is not preventing fraud; it is harming bona fide applicants.

Where the rule seems more likely to achieve its intended purpose is the case of the alien who has spent years in the United States without seeking asylum, and now finds himself in removal proceedings. Such aliens often file for asylum as a last-ditch effort to remain in the U.S. (or at least delay their deportation). Many people from Mexico and Central America are in this position, and the one-year rule often blocks them from obtaining asylum (in addition, such applicants often fear harm from criminals; this type of harm does not fit easily within the asylum framework and contributes to the high denial rate for such cases).

Although there may be situations where the one-year bar prevents fraud, the vast majority of immigration lawyers—including this one—think it does little to block fake cases, and often times prevents legitimate asylum seekers from obtaining the protection they need. In short, we hate this rule, and if I ever become king, we will find other, more effective ways, to fight fraud. Until then, however, we have to live with it.

So for those who have missed the one-year filing deadline, what to do?

There are two exceptions to the one-year rule: Changed circumstances and extraordinary circumstances. See INA § 208(a)(2)(D). If you meet either of these exceptions, you may still be eligible for asylum. Federal regulations flesh out the meaning of these concepts. See 8 C.F.R. §§ 208.4(a)(4) & (5). First, changed circumstances–

(4)(i) The term “changed circumstances” … refer to circumstances materially affecting the applicant’s eligibility for asylum. They may include, but are not limited to: (A) Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; (B) Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or (C) In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.

(ii) The applicant shall file an asylum application within a reasonable period given those “changed circumstances.” If the applicant can establish that he or she did not become aware of the changed circumstances until after they occurred, such delayed awareness shall be taken into account in determining what constitutes a “reasonable period.”

It is a bit unclear how long this “reasonable period” is. A few months is probably (but no guarantee) ok, but six months is probably too long. So if there are changed circumstances in your case, the sooner you file for asylum, the better.

The regulations also define extraordinary circumstances–

(5) The term “extraordinary circumstances” … shall refer to events or factors directly related to the failure to meet the 1-year deadline. Such circumstances may excuse the failure to file within the 1-year period as long as the alien filed the application within a reasonable period given those circumstances. The burden of proof is on the applicant to establish… that the circumstances were not intentionally created by the alien through his or her own action or inaction, that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and that the delay was reasonable under the circumstances. Those circumstances may include but are not limited to:

(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;

(ii) Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;

(iii) Ineffective assistance of counsel….

(iv) The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;

(v) The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and

(vi) The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.

Again, if you have extraordinary circumstances, you must file within a “reasonable period.” How long you have to file has not been clearly defined, so the sooner you file, the safer you will be in terms of the one-year bar.

When it comes to asylum, the best bet is to file within one year of arrival. But if you have missed that deadline, there are exceptions to the rule. These exceptions can be tricky, and so it would probably be wise to talk to a lawyer if you are filing late. It is always a shame when a strong asylum case is ruined by a one-year issue. Keep this deadline (emphasis on “dead”) in mind, and file on time if you can.

Related Post

209 comments

  1. […] that I cannot answer is whether filing online and getting rejected protects the applicant from the one-year filing deadline (asylum applicants must show that they filed the I-589 within one year of arriving in the United […]

    Reply
  2. […] person has no fear of return or would be ineligible for asylum for some other reason (such as the one-year filing bar), it probably makes sense to add them as a dependent. But if the person has his own independent […]

    Reply
  3. […] days, given that receipts from mailed-in I-589 forms can take several months. For people facing a one-year bar, it is certainly comforting to know that USCIS has your application and that you will not be […]

    Reply
  4. […] much more difficult time winning asylum: Some are barred from asylum due to criminal history or the one-year asylum bar. Others just have a more difficult time preparing their cases because they cannot easily gather […]

    Reply
  5. […] people who file for asylum on or after August 25, 2020, and whose asylum application was not filed within one year of arriving in the United States, will be ineligible for an EAD “unless and until the asylum […]

    Reply
  6. […] is that the Administration will try to block EADs for asylum applicants (not asylees) who have a one-year bar […]

    Reply
  7. […] is not filed within one year of the alien’s arrival in the U.S., the alien is generally barred from asylum)? “DHS acknowledges that an alien who is not placed in removal proceedings will […]

    Reply
  8. […] obvious lesson here is this: If you want to win asylum, file your application within one year of arriving in the United States and show up for your […]

    Reply
  9. […] the tragedy is compounded by the fact that his denial was likely a result of failing to meet the nonsensical one-year filing deadline. Had he filed on time, or met an exception to the one-year bar, his case […]

    Reply
  10. […] the tragedy is compounded by the fact that his denial was likely a result of failing to meet the nonsensical one-year filing deadline. Had he filed on time, or met an exception to the one-year bar, his case […]

    Reply
  11. Hi Jason
    I applied for asylum and my application was finally denied by officer and at that time I was in status so they sent me finall denial letter. I went out of status recently and uscis issued NTA appear before immigration judge. can I re open my old asylum claim before judge? should I overcome one year bar since I have my old asylum case or just simply can pursue my old asylum application? do you think I bar to get asylum with this situation? I want to know your office can help me during immigration court.
    regards

    Reply
    • You would probably have to file a new asylum form (I-589) with the judge. You should do that as soon as possible, due to the one-year bar issue(you can submit the form at the court window; you do not need to wait until your first hearing). You can try to use the prior application as an excuse for the one year filing deadline, and I do think it can serve as an excuse in some cases. Also, if you were lawfully present in the US, that also excuses the one-year bar, but again, it depends on the circumstances, and it would be important to file as soon as possible. We can potentially help with your case – if you want to contact us, the email is at right. Take care, Jason

      Reply
      • Hi Jason – I heard that Asylum cases which are filed after 1 year deadline; they straight away gets denied by asylum officer (as they don’t have ability to approve such cases) and referred to immigration court(w/t any interview). What’s the fact on this? whats the best way to file such cases & and what are the success chances of such cases?

        Reply
        • That is not correct. There are exceptions to the one-year rule, and if you meet an exception, you can qualify for asylum at the Asylum Office. I wrote about this issue on January 18, 2018. Take care, Jason

          Reply
  12. Hi Jason, I applied for asylum 4 years ago and my application was denied by asylum officer. I have student status and I am going to re-file asylum application. can I excempt from one year bar since my first application was denied? sholud I be out of status before re-file application to excempt from one year bar? if uscis put me in removal proceedings can I re-file asylum before IJ and use my pervious application as an excemption for one year bar?
    best regards

    Reply
    • If you are still in status, you should meet an exception to the one-year bar. Please note that the filing procedure for a second application is different. Check the I-589 instructions (available at http://www.uscis.gov), but basically, you have to file at the local office, not the service center. Also, if the case is denied and referred to court, you can present the original asylum application and the second application to the judge. Take care, Jason

      Reply
  13. Hi Jason,
    My wife and me have same story. I already applied for asylum and my wife includeed in my application as dependent. Afte years, if I get interview and the officer does not grant me and refer me to the court, at that time my wife can apply for asylum as a main applicatnt and add me as a dependent? I mean does this change of siruation ( her husband is going to court and removal proccess) is a reasonable explanation for why she did not apply for asylum befor( within one year)?
    Thanks

    Reply
    • If she is a dependent on your case, and you go to court, she will also go to court unless she has some other status. She can file an independent case at the asylum office, but I think she would just be placed with you and would not get an interview quickly. I am not sure about that though, as we have not tried to file a new case for a dependent. If you have a pending case as a dependent, that can be used as an exception to the one-year bar (the extraordinary circumstances exception). Take care, Jason

      Reply
  14. Jason:
    I last entered the U.S. 7/5/17. I have an L-1 Visa that will expire 4/9/20. Must I apply for asylum by 7/5/18, or is my deadline 1 year from 4/9/20? Thank you for your help.

    Reply
    • The deadline is one year. If you are in lawful L status, you should meet an exception to the one-year rule. However, I usually recommend that it is better to follow the rule than to meet an exception. Talk to a lawyer about the specifics of the case to be sure. Take care, Jason

      Reply

Leave a Reply to Celia Cancel reply