Applying for Asylum Under the New “Last In, First Out” Scheduling Policy

How changes in USCIS scheduling of asylum cases affect applicant strategy.

In January 2018, U.S. Citizenship and Immigration Services (USCIS) changed the way it schedules asylum interviews. It began prioritizing the most recently filed applications. Since December 2014, USCIS had scheduled asylum interviews in the order they were received, the longest pending applications being the scheduled first—also referred to as a “first in, first out” policy. Because of the high volume of asylum applications, the wait times for interviews became very long—several years at some asylum offices.

Starting January 29, 2018, asylum interviews are being scheduled “starting with newer filings and working back towards older filings” in a policy referred to as “last in, first out.” According to USCIS, this policy change was made to deter frivolous asylum claims from people filing mainly in order to obtain an employment authorization document (work permit), which they are eligible for while their case was pending.

If you have recently applied for asylum or plan on filing for asylum, this new policy could affect your case in case in a number of ways.

Fast Pace of Interviews and Hearings Means Filing Bare-Bones Applications No Longer Wise

Under the previous “first in, first out” policy, an applicant could file a basic, “bare-bones” asylum application (Form I-589) and then gather all the relevant evidence and supporting documents while waiting the months or years for the interview. This also made sense because applicants are not (in most cases) eligible to apply for work authorization until their application has been pending 150 days, which means that filing the basic application as soon as possible made the applicant eligible for a work permit sooner.

Under the new “last in, first out” policy, it may be in an asylum applicant’s best interest to delay filing for asylum, if possible, in order to have time to gather all the evidence related to the claim. All evidence must be received by the asylum office prior to the scheduled interview. The amount of time an applicant must file the evidence before the interview varies based on the asylum office, but is at least one week before.

Preparing a convincing asylum application involves preparing or gathering a number of documents: for example, a personal statement, supporting affidavits, and human rights reports or media articles on country conditions. Some important documents may need to be translated. Asylum applicants will want a majority, if not all, of this preparation work done before filing their claim, so as to avoid the asylum officer considering the claim without critical information and evidence.

If You Are Out of Immigration Status or Your Status Will Expire Soon, You May Not Be Able to Delay Filing

While it may be in an asylum applicant’s best interest to delay filing to gather as much evidence as possible and prepare a personal statement, consider immigration status in making this determination. Asylum applicants who do not have a legal immigration status must apply for asylum within the first year of their most recent entry into the United States (unless they meet an exception to this deadline).

An applicant may not be able to delay filing if out of status and approaching one year since the most recent entry. Furthermore, someone present for less than a year but whose status will soon expire (for example with a tourist visa) may not want to delay filing for too long, as Immigration and Customs Enforcement (ICE) has recently been more aggressive in detaining individuals who have overstayed visas.

People who are out of status must also be prepared to be referred to an immigration court for removal (deportation) proceedings relatively quickly if their case is not approved by the asylum officer. This could be positive in that the asylum applicant will have another chance to seek asylum before an immigration judge, but is also risky because it could result in an order of removal (deportation) if the judge does not approve the claim.

If You Are Currently in Immigration Status, Consider the Expiration Date of That Status

For intending asylum applicants currently in a legal immigration status (for example, with a temporary employment or student visa) the one-year filing deadline will not apply. These applicants have more leeway to take the time necessary to prepare their claims.

Still, these applicants must make sure to apply before their status expires or within a reasonable time thereafter, or they may no longer be eligible for asylum. Consider country conditions and the timeliness of their evidence to determine when to file an asylum claim.

Would-be applicants who are currently in status may also want to delay applications under the “last in, first out” for another reason. Under the previous “first in, first out” policy, most applicants were out of status by the time their asylum interviews were scheduled (as they took several years to schedule). This meant that if their case was not approved by the asylum office it would be referred to immigration court to be considered by an immigration judge.

Under the new “last in, first out” policy, applicants with significant time left on their visas will likely still be in status when their claim is adjudicated. This means that if it is not approved the denial will be final and it will not be referred to an immigration judge. To reapply, the applicant will have to claim a change in circumstances relevant to the asylum claim once out of status.

Be Prepared to Request a Rescheduled Interview If You Need It

Because of the tight timelines the new policy will create, you may need to ask that USCIS reschedule your asylum interview to a later date. The asylum office will generally accommodate one reschedule request, made via email. Be aware, however, that your interview will likely be scheduled for several weeks after you make this request.

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