U.S. immigration law requires that all asylum-seekers meet the following criteria for their case to be considered eligible:
- Have a reasonable fear of future persecution on account of race, religion, national origin, political opinion, or membership in a particular social group.
- Be located in the United States.
- Apply within one year of most recent arrival to the United States (See below for possible exemptions)
This page explains these criteria. Visit the page Applying for Asylum for guidance on submitting an application for asylum.
Note: There are a number of additional rules and “bars,” which may prevent an individual from claiming asylum, even if they meet these criteria. Political Asylum USA has a detailed explanation of these rules, which are important to know before submitting an application.
1. Demonstrate a reasonable fear of persecution
Under asylum law, applicants must “demonstrate a reasonable fear of future persecution on account of race, religion, national origin, political opinion, or membership in a particular social group.”
Each of the above words and phrases has a specific, legal definition for asylum applications. We briefly explain these terms below. For more detailed descriptions, please visit Political Asylum USA.
Reasonable fear refers to the likelihood that that the applicant will be persecuted if they are forced to return to their home country. Asylum seekers must prove both subjective fear and objective fear.
Subjective fear refers to the individual’s fear of persecution. This can be established through the applicant’s candid, sincere, and truthful testimony.
Objective fear refers to whether this fear of persecution seems reasonable to someone other than the applicant.
Applicants do not need to prove that they will definitely be persecuted if they return home. They need to demonstrate a “reasonable” fear of this occurring, for example by explaining how LGBTQ people are being harassed or criminalized in their home country. Asylum law states reasonable fear can be proven with as little as a 10% chance of persecution.
Asylum seekers must prove that the persecution they fear is likely to occur if they return home. One way to argue this is presenting evidence of past persecution; if it happened before, it is more likely to happen again. However, if conditions in the applicant’s home country have changed since s/he was persecuted–for example, if an anti-homosexuality law has been overturned–an application may be denied.
Individuals who have not been previously persecuted are still eligible to apply but may have a more difficult time proving their fear of future persecution. In this case, it is especially useful to explain current conditions in one’s home country. For example, if it is illegal to engage in same-sex relationships or if there is a proven record of violence against LGBTQ people, this can justify a “reasonable fear of future persecution.”
“On Account of Race, Religion, National Origin, Political Opinion, or Membership in a Particular Social Group”
LGBT asylum seekers may apply for asylum under any or multiple of these reasons. There is legal precedent for LGBT individuals to cite “membership of a particular social group” in their asylum application. Applicants must first prove that they are a member of this group—that is, the “LGBT community.” This may be difficult if U.S. immigration officers’ ideas about LGBT identity are based on U.S. norms and stereotypes. Officers’ expectations do not always match an applicant’s expression of their personal sexuality and/ or gender identity. Letters of documents proving membership in an LGBTQ organization, or evidence of engagement in same-sex relationships are useful.
Next, applicants must prove that they fear persecution specifically because of their LGBT identity and belonging to a social group of LGBT people. It is not enough to just prove a fear of persecution. If a person is persecuted for multiple reasons, s/he must prove that LGBT status is the primary reason if that is the focus of their asylum claim. Commonly, LGBT individuals prove they fear this specific persecution by establishing that the government commits the persecution, condones it, or is unable to stop or prevent it.
2. Be in the United States
Many people confuse the terms “refugee” and “asylum seeker.” Both words denote an individual who “has a reasonable fear of future persecution on account of race, religion, national origin, political opinion, or membership in a particular social group.”
Refugee status is given to an individual before entering the United States. Asylum status is granted after someone enters the United States and formally applies for asylum. See this fact sheet for more distinctions between these two immigration classifications.
Many potential asylum seekers enter the US on visas that do not show that they are fleeing persecution (e.g. short term visas such as B visas) or with no documents at all. These individuals can apply for asylum upon entering the United States. However, as immigrant populations are often viewed with suspicion in the U.S., asylum seekers remain at risk of being detained and/or threatened with deportation. People held in detention can still file an asylum claim.
3. Apply within one year of arrival
Asylum seekers must file their application (Form I-589) to the U.S. Customs and Immigration Office within one year (365 days) of their arrival in the United States. The one year filing deadline is measured from the applicant’s most recent arrival, so earlier trips to the U.S. should not affect applications unless the applicant was previously deported.
Applicants who are approaching one year in the U.S. can submit a “skeleton case” of Form I-589 before the deadline and later add supporting information and documents to strengthen their case.
Applicants who have been in the country for more than one year may be able to claim an exemption from the one year filing requirement, if they can argue one of the following exemptions:
- Changed Circumstances: An asylum applicant can argue that a change in circumstances after the deadline prompted them to apply. For example, they may not have “come out,” or realized that they identify as LGBT until they entered the U.S. They may have maintained a lawful immigration status (i.e. a visa sponsored by an employer) since arriving to the U.S., which abruptly ended. Perhaps their home country introduced new laws criminalizing LGBT identity while the applicant was in the U.S.
- Extraordinary Circumstances: An asylum applicant can argue that s/he was unable to apply by the deadline. For example, they may have been mislead by their lawyer, suffered significant mental health concerns upon entering the U.S., or been otherwise prevented from submitting their claim.
There are other possible reasons that an applicant might qualify for an exemption. However, s/he must still apply “within a reasonable amount of time,” which generally means within a few months of the change or extraordinary circumstance. Individuals who have lived in the U.S. for a long period of time before submitting a claim can find it very difficult to win their case.
In all cases, we strongly advise applicants contact a trustworthy and qualified legal representative before filing their claim.