USAsylum / refugee status

Asylum through the immigration court in the US

Defensive Asylum is protection from deportation that a person asks an immigration judge of the Executive Office for Immigration Review (EOIR) at the US Department of Justice to grant while already in removal proceedings. It is available to people who face persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group if returned home, and whose case has by that point already been referred to the court — either after USCIS declined the case under the ordinary (affirmative) procedure, or straight after being detained at the border or inside the country.

Visa term

The status is indefinite, there is no routine renewal

Threshold

No government fee for the I-589

Processing time

Varies because of the court backlog: months to years

Work

After the grant — work; while the case is pending, an EAD after 180 days

Source: justice.gov/eoir — asylum in immigration court

Who can qualify

Defensive asylum is decided not by a USCIS officer but by an EOIR immigration judge — and the route here always runs through removal proceedings that have already started.

Grounds for asylum

There is past persecution or a well-founded fear of future persecution — by the EOIR definition, at least a 10 per cent chance of being harmed
The persecutor is the state itself or groups the state cannot or will not control
The reason for the persecution is race, religion, nationality, political opinion or membership of a particular social group; discrimination and harassment without such a link do not count as persecution
There is no safe place to relocate to inside your own country
The application was filed within 1 year of the last entry into the United States, or there are extraordinary or changed circumstances explaining the later filing
You have not previously been deported from the United States and deserve a positive decision as a matter of the judge’s discretion

How you end up in EOIR proceedings

USCIS did not approve the case under the affirmative procedure and referred it to an immigration judge, issuing Form I-862 (Notice to Appear) or Form I-863 for a separate asylum hearing
You were detained in the United States or at a port of entry without lawful status or in breach of the conditions of your stay, and removal proceedings were started
At the border you were placed in expedited removal, but a CBP officer found credible fear — a well-founded fear of persecution or torture
USCIS held an Asylum Merits Interview after a positive credible fear determination, did not approve asylum and streamlined the case to court under section 240 INA

What it costs

Form I-589 — application for asylum and withholding of removal (base fee)	0 USD
Fee for filing the I-589 under Pub. L. 119-21 (Asylum Application Fee, for the principal applicant)	100 USD
Annual Asylum Fee — charged each year while the I-589 is pending (for the principal applicant, paid on notice from USCIS)	102 USD
Form I-765 (c)(8) — work permission on a case not yet decided: additional Pub. L. 119-21 fee for an initial EAD	+560 USD
Form I-765 (c)(8) — renewal of the EAD on a case not yet decided: additional Pub. L. 119-21 fee	+275 USD
Form I-765 (a)(5) — EAD once an immigration judge has granted asylum (initial card)	0 USD
Form I-765 (a)(5) — renewal of the EAD after asylum is granted (the general Form I-765 rate; the Pub. L. 119-21 concession does not extend to renewals; online filing)	470 USD
Form I-730 — petition to reunite with a spouse and children after asylum is granted	+0 USD
Total government feesThe sum of the mandatory rows in the table. “Form I-765 (c)(8) — work permission on a case not yet decided: additional Pub. L. 119-21 fee for an initial EAD” adds 560 USD; “Form I-765 (c)(8) — renewal of the EAD on a case not yet decided: additional Pub. L. 119-21 fee” adds 275 USD; “Form I-730 — petition to reunite with a spouse and children after asylum is granted” adds 0 USD.	202–1 037 USD

Documents to gather

The set is assembled around Form I-589, which in the defensive procedure is filed with the EOIR immigration court; the form and all explanatory material must be in English.

Form I-589, Application for Asylum and for Withholding of Removal, completed entirely in English
A personal statement setting out in detail the persecution suffered or expected
Evidence of persecution — medical reports, police records, witness statements, threatening correspondence
Country conditions reports on the country of origin
An identity document and details of past entries to and departures from the United States (Form I-94, if one was issued)
Marriage and birth certificates — if you are including a spouse or children as dependants
Biometric and biographic data for security checks — these are submitted to USCIS under a separate procedure for applicants whose case is already before EOIR

How the process runs

The procedure and the rights of the parties are set out on the USCIS page “Obtaining Asylum in the United States” in the section on the defensive procedure.

1
You are placed in removal proceedings before EOIR
This happens in one of two ways: USCIS did not approve the case under the affirmative procedure and referred it to an immigration judge (Form I-862 Notice to Appear) or issued Form I-863 for a separate asylum hearing; or ICE and CBP themselves placed the person in removal proceedings — after detention without lawful status or in breach of the conditions of stay, or following expedited removal at the border where a CBP officer established credible fear of persecution.
2
Filing Form I-589 with the immigration court
within 1 year of the last entry into the United States, unless there are extraordinary or changed circumstances
If an I-589 was already filed with USCIS, the judge considers it afresh — de novo, independently of the USCIS decision. If the application has not yet been filed, it is sent directly to the court at the address given by the EOIR hotline or its online system; filing at the wrong address means the application will not be accepted.
3
Merits hearing before the immigration judge
The judge holds an adversarial, trial-like hearing: the applicant — in person or with a lawyer — presents evidence and testimony, while an ICE attorney appears for the government. The court provides a qualified interpreter for the hearing and for all other sittings in the case.
4
The judge’s decision and the right of appeal
If the judge finds the applicant eligible for asylum, it is granted. If not, the judge checks eligibility for other forms of protection from removal; if none of those apply either, an order of deportation is issued. Either party — the applicant or the government — may appeal to the Board of Immigration Appeals and then, after its decision, to a federal court of appeals.
5
Filing for a green card (Form I-485)
1 year after asylum is granted
The application may be filed once physical presence in the United States in asylum status has reached one year at the point USCIS decides the case, not at the point the I-485 is filed. A separate set of documents is filed for each family member holding derivative asylum status.
6
Naturalisation
as a rule about 4 years after the green card is received
Naturalisation generally requires 5 years of continuous residence as a permanent resident. But for former asylees the date from which LPR status is counted is, under USCIS rules, treated as falling 1 year earlier than the date the I-485 was approved — so in practice less time from the green card itself is usually needed.

Who you can bring with you

Asylum granted through the defensive procedure covers more than the applicant alone.

A spouse and unmarried children under 21 included on Form I-589 as dependants

Receive asylum status together with the applicant if the judge decides in their favour. To add a dependant to an application already filed, a separate letter is sent to the asylum office — a new Form I-589 is not filed

A spouse and children who remained outside the United States or were not included on the original Form I-589

A separate Form I-730 (Refugee/Asylee Relative Petition) is filed for them within 2 years of asylum being granted; there is no filing fee

Applicants for withholding of removal (the alternative form of protection in the same case)

Withholding of removal has no derivative status: a spouse and children must file their own separate applications, even if the persecution relates to the same case

Trips, renewal and the grace period

Physical presence in the United States is required

Status granted by an immigration judge has no separate renewal procedure and no expiry date. Work permission (EAD) in this case is applied for on Form I-765 in category “(a)(5) Asylee” — unlike affirmative applicants, who are sent an initial EAD automatically, a holder of defensive status must file the I-765 themselves to obtain the card. Even if the EAD card has formally expired, a recognised asylee keeps the right to work without it — on the basis of the status itself and the asylum grant endorsement on Form I-94.

How it differs from the routes next to it

The comparison is built from the official terms of the routes themselves — the source links sit on their own pages.

	Asylum through the immigration court	Humanitarian parole	TPS — temporary protection
Visa term	The status is indefinite, there is no routine renewal	Temporary, usually up to 1 year; re-parole means a new I-131	Temporary; extended in cycles of 6/12/18 months; re-registration is required
Grounds	Persecution	Emergency entry	War or disaster at home
Money	No government fee for the I-589	I-131 fee about $630; usually a sponsor with an I-134	Fee for the I-821 and biometrics (at the USCIS rate)
Work	After the grant — work; while the case is pending, an EAD after 180 days	Not automatic; an EAD through Form I-765	An EAD through Form I-765; protection from removal for the designation period
Residence	Physical presence in the United States is required	Gives physical presence, does not create permanent resident status	Continuous residence/presence from the stated dates

What comes next: permanent residence and citizenship

Route to permanent residence

Green card 1 year after asylum is granted

Route to citizenship

Naturalisation roughly 4 years after the green card

Frequently asked questions about Asylum through the immigration court

How does defensive asylum differ from affirmative asylum?

USCIS distinguishes three ways of obtaining asylum: the affirmative procedure through a USCIS officer, the Asylum Merits Interview after a positive credible fear determination, and the defensive procedure. Defensive asylum is only possible where the person is already in removal proceedings before an EOIR immigration judge — the case is heard by a court rather than a USCIS officer, and the hearing is adversarial: an ICE attorney appears for the government.

What is the deadline for filing Form I-589?

The general rule is within 1 year of the last entry into the United States. Filing later is possible only where there are changed circumstances materially affecting eligibility for asylum, or extraordinary circumstances that prevented timely filing; even then the application must be filed within a reasonable period once the obstacle has ended. Not knowing that asylum existed is not treated as an exception.

How much does it cost to file the I-589 and to remain in status while the decision is pending?

Form I-589 itself is free, both on paper and online. But under Pub. L. 119-21 the principal applicant must separately pay 100 dollars on filing (the Asylum Application Fee) and then, each year while the case is pending, an Annual Asylum Fee of 102 dollars on notice from USCIS. Neither sum can be waived through a fee reduction request, and without payment of the Annual Asylum Fee the application will not be approved.

When can you get work permission while the case is still pending?

Eligibility for an EAD usually arises once the asylum application has been pending for 180 days — this is known as the 180-Day Asylum EAD Clock. Form I-765 in category (c)(8) may be filed as early as 150 days after the I-589 was filed. Delays caused by the applicant themselves — rescheduling a hearing, non-appearance, late submission of evidence — do not count towards that period, and failing to attend the mandatory collection of an asylum decision can stop the clock altogether.

How much does an EAD cost once the judge has granted asylum?

After the asylum grant Form I-765 is filed in category “(a)(5) Asylee”: the initial card is free. Renewal of that card, however, is not on the Pub. L. 119-21 concession list and costs the general Form I-765 rate — 470 dollars online or 520 dollars on paper. This differs from category (c)(8) for a case not yet decided, where the additional Pub. L. 119-21 fee applies — 560 dollars for an initial EAD and 275 dollars for a renewal.

What happens if the immigration judge refuses asylum?

The judge first checks whether other forms of protection from removal are available; if they are not either, an order of deportation is issued. Either party — the applicant or the government — may appeal to the Board of Immigration Appeals and, after its decision, to a federal court of appeals.

What happens to work permission if asylum is refused?

If work permission was based on the pending application, it ends on the EAD expiry date or 60 days after the refusal — whichever is later. Where the decision is made by an immigration judge, the right to work ends on the date shown on the EAD, unless the decision is appealed to the Board of Immigration Appeals or, after its decision, to a federal court.

When can you file for family members once asylum has been granted?

A spouse and children who were not included on the original Form I-589 or who remained outside the United States are added through Form I-730 (Refugee/Asylee Relative Petition). It must be filed within 2 years of asylum being granted, unless the delay is justified by humanitarian reasons; there is no fee for filing the I-730.

Other ways to move to US

Every route in one list — migration programmes: US.

The terms and the amounts are checked against official sources — the link sits under each section.Last checked on: 7 August 2026.