You are expected to apply for asylum within one year of your last entry into the United States. If you entered the U.S. using a nonimmigrant visa, the one-year period is counted from the day when your valid visa status expired.
If you are applying affirmatively, U.S. Citizenship and Immigration Services (“USCIS”) must receive your application a day before the one-year anniversary of your last entry into the United States or the expiration of your visa status. For example, if you last entered the U.S. on May 1, 2012, you must file on or before May 1, 2013. (Note that if May 1, 2013 falls on a Saturday, Sunday, or a legal holiday, you must file on the next business day to be timely.) If you fail to establish that you filed timely or that an exception applies to you, the Asylum Officer who handles your case will refer your application to an Immigration Judge. For details about applying for asylum affirmatively, see “How to Prepare an Affirmative Asylum Application.”
If you are applying for asylum defensively (that is, after having been placed in removal proceedings), you also must apply within one year of your last entry or expiration of your visa status. However, you will need to submit your application to the Immigration Judge instead of sending it to USCIS. For details about applying for asylum in removal, see “How to Prepare an Asylum Application in Removal Proceedings.”
Documenting That You Filed on Time
Whether you apply affirmatively or defensively, in addition to showing that you are a refugee who qualifies for asylum, you must present evidence that either:
- you filed within the one-year deadline or
- an exception to the filing deadline applies.
Therefore, as part of your asylum application, you must include:
(1) clear and convincing evidence that your last arrival into the U.S. or the expiration of your nonimmigrant stay was within the one-year period immediately preceding the date when you filed for asylum; or
(2) clear and convincing evidence that you were outside the U.S. during the one year immediately preceding your filing date; or
(3) satisfactory evidence that you experienced a “changed circumstance” material to your eligibility for asylum, and that you filed within a reasonable period after the changed circumstance occurred; or
(4) satisfactory evidence that you experienced “extraordinary circumstances” directly related to your filing delay, and that you filed within a reasonable period given those circumstances.
Possible forms of evidence that you may use to show that you filed within one year of arrival or the expiration of your permitted stay, or that an exception applies to you, include the following:
- your testimony (which on its own may suffice, as long as you are found to be credible)
- documents (such as passport stamps, boarding passes, leases, and receipts); and
- witness statements.
For more information about how to present strong evidence, see “Preparing Persuasive Documents For Your Asylum Application.”
“Clear and convincing” evidence means that the evidence you present creates a firm belief that what you assert is true. That is, you must show that it is highly probable that you applied within one year of your last arrival. “Satisfactory” evidence means that you use credible evidence to persuade an Asylum Officer or an Immigration Judge that an exception applies to you.
If you missed the one-year filing deadline, see a reputable attorney. Exceptions to the filing deadline are rarely made. Your ability to prove that an exception applies to you depends on the unique facts of your case. The Asylum Officer or the Immigration Judge will look at all of the facts you present. What qualifies as an exception (a changed or an extraordinary circumstance) for one applicant does not necessarily constitute an exception for others. You must present detailed, consistent, and credible information to increase your chances of qualifying for an exception. Below is an overview of the two exceptions to the one-year filing deadline.
Proving That the “Changed Circumstance” Exception Applies
You must show that a changed circumstance (in your personal life or in conditions in the U.S. or in your home country) was material to your eligibility for asylum, and that you filed within a reasonable time after the circumstance occurred or after you learned of it. An Asylum Officer or an Immigration Judge will consider any delays in your learning of the changed circumstances.
Here are some examples of what might qualify as a “changed circumstance,” depending on the particular facts of your case:
- you were not afraid to return home when you had entered the U.S., but you are afraid now, because (1) people like you are now persecuted in your home country even though they were not when you left (for example, a new government came into power that is antagonistic to your race, tribe membership, or profession), or (2) you started being involved in political or religious activities after leaving your home country, and this involvement places you at risk of persecution
- U.S.asylum law has changed, making you eligible for asylum now even though you were not eligible before, or
- your relationship to a primary asylum applicant (such as a spouse or a parent) has ended, such that you must now apply on your own.
This is not an exhaustive list. Other events might be considered changed circumstances for the purposes of this exception. Consult an attorney for a personal analysis.
Proving That the “Extraordinary Circumstance” Exception Applies
You must show that events in your own life (before or after your arrival in the U.S.) directly relate to your failure to file within the one-year filing deadline, and that you filed within a reasonable period after the extraordinary circumstance stopped affecting you. You must also show that you did not intentionally create such extraordinary circumstances (through your own action or inaction).
Here are some examples of what might be considered an “extraordinary circumstance,” depending on the totality of the facts of your case:
- you suffered a serious psychiatric or medical illness during at least a part of the one-year filing period (which might, but does not need to be, the result of your persecution)
- a member of your immediate family or your legal guardian died or was seriously ill
- you were legally disabled (a minor or mentally impaired) during the one-year filing period
- other personal factors were so extreme that they impacted your functioning and made you unable to file on time (for example, you suffered extreme isolation within an immigrant community, severe family opposition to applying for asylum, or profound cultural and language barriers)
- ineffective assistance of your lawyer directly relates to the delay in filing (you must file a written affidavit explaining the agreement you had with your attorney; inform your attorney that you are accusing him or her of ineffective assistance; and explain whether you have filed a formal complaint against the attorney with disciplinary bodies)
- you had been here in lawful status during at least a part of the one-year period (note that this is NOT the same as entering the U.S. on a valid visa, in which case your one-year period begins on the day when that valid status expires; instead, if you enter without a valid visa, and then somehow obtain a valid visa or permission to be in the U.S. temporarily - such as a temporarily protected status - you still need to file within one year of your initial entry; however, the fact that you had spent a part of that one-year period in a valid status might be considered an “extraordinary circumstance” factor); or
- your application was filed within a year, but it was rejected for corrections, and then you refiled it more than one year after your arrival.
Other life events might be considered “extraordinary circumstances” for the purposes of this exception. Consult an attorney if you have questions.
You Must File Within a “Reasonable Time” After the Changed or Extraordinary Circumstance
If you argue that an exception to the filing deadline should apply to you, you must also prove that you filed your asylum application within a reasonable time after the changed or extraordinary circumstance occurred.
What is “reasonable” depends on the unique combination of all the facts of your case. Asylum Officers and Immigration Judges look at what a reasonable person in your unique circumstances would have done. In addition to the specific events that caused your delay in filing, other relevant factors that they might consider include:
- any delay in when you first became aware of the changed circumstance
- your educational background and language skills
- how long it takes to obtain legal help, and
- any ongoing physical or emotional effects of your persecution.
Typically, a delay of just a few months might be “reasonable,” but a six-month delay is usually not. Therefore, try to file your application as soon as possible after the occurrence of any changed or extraordinary circumstance. You will need to provide detailed and credible evidence regarding your filing within a “reasonable” time.