Can I Still Apply for Asylum After the One-Year Filing Deadline?

If you wish to request asylum in the United States, you are expected to apply for it within one year of your last entry into the country, particularly if your entry was unlawful (for example, you crossed the border without permission. (See I.N.A. § 208(a)(2)(B).) Or if you entered the U.S. with permission, using a nonimmigrant visa (such as a B-2 visitor or F-1 student visa), U.S. Citizenship and Immigration Services (USCIS) has adopted a policy of counting the one-year period from the day when your valid visa status expired.

Some people inevitably miss the deadline, however. This article will discuss:

• how to calculate your one year filing deadline
• what happens if you miss the one-year filing deadline
• how to claim the "changed circumstances" exception to the one-year filing deadline
• how to claim the "extraordinary circumstances" exception to the one-year filing deadline, and
• what length of time is reasonable to request an exception to the one-year asylum filing deadline within.

For details about applying for asylum with the Asylum Office, see How to Prepare an Affirmative Asylum Application.

Calculating Your One-Year Asylum Deadline

If you are applying affirmatively (on your own initiative, not in deportation proceedings), USCIS must receive your application on the one-year anniversary of your last entry into the United States or the expiration of your status, or the next business day if that day falls on a Saturday, Sunday, or legal holiday. For example, if you last entered the U.S. on April 8, 2023, you must file on or before April 8, 2024. If your one-year anniversary happens to fall on a Saturday or Sunday, you could file on the next business day, the Monday after.

There is an exception for unaccompanied children. If you are under age 18 and have no parent or legal guardian in the United States, you have until you are 18 to apply for asylum. (See (See I.N.A. § 208(a)(2)(E) and 6 U.S. Code § 279(g).)

Consequences of Failing to File for Asylum Within One-Year Deadline

If you initially file for asylum affirmatively (of your own volition, not because you're already in immigration court and defending yourself), but you fail to establish that you filed on time or that an exception applies to you, the Asylum Officer who handles your case and interviews you will refer your application to an Immigration Judge. At that time, you can renew your claim for asylum and perhaps argue that you actually entered less than a year before your asylum filing, or for an exception to the one-year filing deadline.

If you are applying for asylum defensively (that is, after having been placed into removal proceedings), you also must apply within one year of your last entry or expiration of your status under a visa or other permitted stay. However, you will need to submit your application to the Immigration Judge instead of sending it to USCIS and attend a court hearing.

Documenting That You Filed for Asylum 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:

• 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
• clear and convincing evidence that you were outside the U.S. during the one year immediately preceding your filing date, or
• 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
• 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:

• your testimony (which on its own could 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 it 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. Such exceptions are rarely made; below is an overview of the two possibilities.

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 examples of what might qualify as a "changed circumstance," depending on the facts of your case:

• You were not afraid to return home when you had entered the U.S., but you are afraid now, because 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).
• You started becoming involved in political or religious activities after leaving your home country, and this involvement now 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.
• 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.

Proving That the "Extraordinary Circumstance" Exception Applies

To qualify for the "extraordinary circumstance" exception, 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 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 have been, the result of your persecution).
• A member of your immediate family or your legal guardian died or was seriously ill.
• You were legally disabled or incompetent 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 or by a notario or scam artist directly relates to the delay in filing.
• You were in lawful status during at least a part of the one-year period, for example with Temporary Protected Status (TPS).
• 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 facts in 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 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 a few months might be "reasonable," but a one-year delay is usually not. 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.

Getting Legal Help

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 another. You must present detailed, consistent, and credible information to increase your chances of qualifying for an exception.