Immigration Center of
Ekaterina Mouratova, PA

Affirmative Asylum

The Terms Made Clear:



A refugee is an individual who is of special humanitarian concern to the United States. If an individual has fled his or her country and is not able to return because of possible harm or persecution, then he or she would be classified as a refugee. The U.S. has accepted many refugees from Burma, Bhutan, and Iraq. 


Secondary Refugee

A secondary refugee is an individual who was resettled in one location and then transported or willingly moved to a new location after being settled. In many circumstances, refugees will relocate to be in proximity to closely related ethnic groups. Secondary refugees may also move from an initial settlement to avoid high poverty rates or crime. The states with the highest rates of secondary refugees are Iowa and Minnesota, and New York is among one of the states with the highest rates of refugees moving out of the state. 


It is important to note an immigrant is any individual who comes to the U.S. from another country, which is usually for a better quality of life, but not all immigrants are refugees. 



An asylee is an individual who falls under the definition of a refugee, but he or she is already in the U.S. or attempting to enter the country at a port of entry.


Basically, the difference between the refugees and asylees is that refugees are people who are located outside of the United States at the time of filing an immigrant application and asylees are those who file an application with the US government while already being present in the United States or at the port of entry.


The United States doesn't discriminate against individuals based on their country of origin. Everyone who has a well-founded fear of persecution can apply for asylum.


There are two legal processes to get an asylum status in the United States. They are called Affirmative Asylum or Defensive Asylum.

What is Affirmative Asylum? 

According to the United States domestic immigration law and international obligations, those entering the country are not to be returned to their country of origin if they are at risk of persecution or torture from their government. If an individual wishes to qualify for asylum, they must apply within one year from entering the country. Those who want to apply for asylum should contact an experienced immigration attorney as soon as they make a decision or need guidance before making a decision.


If individuals are inside the U.S. and are in a lawful status, entered illegally, or overstayed their authorized period, they still may affirmatively apply for asylum with the United States Citizenship and Immigration Services (USCIS). Affirmative asylum means the individual submits an application to USCIS voluntarily and before being caught by the immigration officials.


There are five categories of individuals who are qualified for asylum or withholding of removal if they have been persecuted due to one of the following: 


  • Ethnicity
  • Nationality
  • Political opinion
  • Membership in a particular social group
  • Religion


An individual who seeks asylum can apply at the moment they arrive in the U.S. or after he or she enters the country. In order to meet eligibility requirements for asylum, an individual must apply within one year of entry into the United States. However, there are exceptions. A person can apply after the expiration of one year period if he can prove that he was prevented from applying earlier due to the circumstances outside of his control. The excusable delays include individuals who were minors when they entered the country or those who suffer from post-traumatic stress disorder (PSTD). Not knowing the law is not an excuse for late applications.


Those who do not file within one year and don't meet the requirements for an exception will be deemed ineligible for asylum. However, many individuals still apply for withholding of removal. Although the requirements are typically the same, an asylum status provides more benefits. An asylee is able to transition to permanent residency and will receive a green card, so it is one of the fastest paths to citizenship. Furthermore, an asylee is also able to sponsor a spouse and children if they are still in their home country. 


If an individual applies affirmatively with the USCIS, they will either approve his or her application for asylum or send the case to the Executive Office for Immigration Review (EOIR) to be reviewed by an immigration judge. Those who have their cases sent to EOIR should contact an immigration attorney to ensure their rights are protected. An experienced immigration lawyer understands what is needed in these situations.

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