New Asylum Procedures Create Challenges and Opportunities





by alc@alanculwell.com | Apr 3, 2018 | Affirmative Asylum, Immigration Law |



Beginning on January 29, 2018, USCIS changed their scheduling policy for asylum applicants.





Previously, USCIS would schedule asylum interviews first for those that had been waiting the longest. With more asylum applications being filed than USCIS could handle, this created a waiting period that quickly grew to two, three or even five years, depending on the asylum office location. The mere fact that someone could enter the US on any type of visa (or even without a visa) and then apply for asylum, knowing it would be up to five years before a decision was rendered, meant that some people were willing to abuse the system and apply for asylum just to have a few extra years to live in the United States. In my experience, most people seeking asylum are truly in fear of returning to their home country, but I imagine that the ability to abuse the system was a temptation that some people chose not to resist.


The new scheduling system for asylum applicants is quite the opposite of the system described above. The new system presents challenges to many and advantages to others. Asylum offices are scheduling interviews on a last-in first-out basis, meaning that those who file their applications now will have their interviews scheduled as quickly as possible. We are seeing interviews scheduled around 45 days after an asylum application is filed, at least at the time this article is being written.


The main challenge to the new system is the need to do so much more work before even filing the asylum application. Instead of spending months preparing evidence, translating all documents, and gathering relevant articles and reports, which would all be submitted long after the initial bare-bones application was filed, we need to have a solid set of evidence to submit with the initial application, due to the speed at which the interviews are taking place. We don’t want to have an interview scheduled before an important document can be obtained, which would leave the asylum officer wondering why the applicant did not have a well-prepared application and which could damage the asylum applicant’s chance of success. Prior to the new procedures, we were able to charge our clients a low fee up front along with reasonable monthly payments, knowing that the client had a long time to pay for their case before their interview. We are no longer able to offer this benefit to our clients, because all the work must be done up front. This is heartbreaking at times, knowing that some clients that have strong asylum cases are left without the ability to pay for competent legal assistance with their cases.


The new scheduling system offers benefits for some of our clients. First, the clients have an easier time remembering dates and specific facts of their cases at the time of the interview, because less time has passed. Also, their country conditions are likely to be the same (if not a bit worse) since they left, whereas with the prior system, the country conditions could change dramatically during the two to five year waiting period. Also, if the client has a strong case for asylum, there is no reason to want to wait extra years before receiving the benefits of asylum, including the ability to request permanent residence after only one year and the ability to become a US citizen four years after gaining permanent residency. While asylees, or those that have been granted asylum, are not able to return to their home country, they often can travel to a nearby country where they can meet up with family members they greatly miss. Some employers are more willing to hire a permanent resident than someone seeking asylum, which means that good employment may be found more quickly with the new system, for those with successful cases.


One additional benefit of the new system is that some who enter on a visa will have the ability to retain their visa benefits in the case that an asylum application is denied. For example, if someone enters the country with a B1/B2 visa, and upon entering decides to seek asylum, it is possible that the entire asylum application process could be completed before their I-94 expires, which is typically six months. If the asylum applicant receives asylum, that person can then continue to live in the United States indefinitely. If the asylum application is denied before their I-94 has expired, the person theoretically could return to their country (despite the perceived danger) and at a later date return to the United States on their tourist visa as long as it has not expired. It seems likely that someone in this situation would need to be able to show that a later visit to the United States on the same visa would be a visit purely for business or pleasure to be allowed entry, but that should be determined on a case by case basis by Customs and Border Patrol, or CBP, which has always been the case with each entry using a tourist visa.


Overall, while the changes to the scheduling system may create challenges for law firms and those unrepresented by attorneys to prepare comprehensive applications which include all available supporting evidence, something needed to be done to improve waiting times for those seeking asylum, especially since asylum cases are typically based on emergency situations. I hope that USCIS is able to find a way to fairly adjudicate all incoming applications and also those applications of asylum seekers that have been waiting years to find certainty and stability through the asylum process.