Introduction

By law, “[a]ny alien who is physically present in the United States or who arrives in the United States …, irrespective of such alien’s status, may apply for asylum…” INA 208(a)(1). An alien may file an affirmative asylum application [see category] with the USCIS or, if he or she is in removal proceedings [see category], a defensive asylum application with the immigration court. However, in all cases, applying for asylum requires filing a Form I-589, Application for Asylum and Withholding of Removal. The USCIS has published a useful guide [link] to how it handles Form I-589 applications in different scenarios.

Below, we will work through the USCIS’s informal guidance. Note that this guide does not cover situations in which an alien who is already in removal proceedings files a Form I-589 in the first instance with the immigration court — it only covers what happens when a Form I-589 is filed with the USCIS.

Five Form I-589 scenarios

Scenario 1: No NTA/Removal proceedings

An alien who has not been issued a Notice to Appear charging him or her as removable may file an affirmative asylum application with the USCIS, regardless of whether he or she is in lawful immigration status. The USCIS explained what its process is when it receives an asylum application from an individual who is not in immigration court proceedings and who has not been issued an NTA:

We will accept your completed Form I-589 and send you a receipt notice. Keep your receipt notice for your records. The date USCIS receipted your Form I-589 will serve as the filing date for the purpose of the asylum one-year filing deadline.

Thus, in this scenario the USCIS will keep the Form I-589 and send the applicant a Form I-797C receipt notice which will confirm that the USCIS received the application and note exactly the date on which it was accepted for processing. This date is important. As a general matter, aliens must apply for asylum within one year of their last entry in the United States (INA 208(a)(2)(B)), subject to limited exceptions (INA 208(a)(2)(D)). The date on which the USCIS received the asylum application, indicated on the receipt notice, serves as the pertinent date for determining whether the application was filed within one year of the alien’s most recent entry into the United States.

Scenario 2: I-589 filed within 21 calendar days of DHS filing and docketing NTA with EOIR

The Department of Homeland Security, of which the USCIS is part, may initiate removal proceedings against an alien by filing a Notice to Appear (NTA). The NTA sets forth removal charges and initiates removal proceedings. Once an NTA has been filed with the immigration court and docketed with the Executive Office for Immigration Review (EOIR), the immigration judge, rather than the USCIS, has jurisdiction over a subsequently filed application for asylum. The USCIS explained how it proceeds if it receives a Form I-589 from an alien within 21 days (inclusive) of the DHS filing and docketing the NTA with the EOIR:

We will accept your Form I-589, send it to the EOIR immigration court where your proceedings are pending, and notify you by mail. EOIR will adjudicate your Form I-589. The date USCIS receipted your Form I-589 will serve as the filing date for the purpose of the asylum one-year filing deadline.

In this scenario, although the USCIS will accept, rather than reject, the Form I-589, because jurisdiction rests with the immigration court due to the issuance of the Notice to Appear, the USCIS will send the Form I-589 to the court, which will be responsible for considering and deciding the application. For purpose of the one-year time limit, the date on which the USCIS received the Form I-589 will still serve as the filing date.

Scenario 3: I-589 filed 22 days or more after DHS filed and docketed NTA with EOIR

In this scenario, the USCIS will reject the Form I-589 because it no longer has jurisdiction over the application. It will return the rejected Form I-589 to the applicant. If the prospective applicant wants to seek asylum, he or she must file directly with the immigration court and take care to do so within the one-year filing deadline (or otherwise seek an exemption).

Scenario 4: Form I-589 filed after DHS issued NTA but before NTA has been filed and docketed

In this scenrio, the USCIS will accept the Form I-589 and send it to the immigration court having jurisdiction over the applicant’s removal proceedings. It will notify the applicant that the Form I-589 has been forwarded to the immigration court and that the immigration court will adjudicate the application. Here, the date on which the USCIS received the Form I-589 will again serve as the effective date for the one-year filing deadline.

Scenario 5: Form I-589 filed after DHS previously issued NTA, but NTA has not been filed and docketed

In this scenario, the USCIS will accept the Form I-589, issue an NTA, file the NTA with the EOIR, and send the Form I-589 to the immigration court then having jurisdiction over the applicant’s removal proceedings and Form I-589. The USCIS will notify the applicant. The immigration court will then adjudicate the Form I-589. The date on which the USCIS received the Form I-589 will serve as the effective date for the one-year time limit.

Other notes

The USCIS’s guide includes other useful notes for asylum applicants who have applications pending with the USCIS.

Check if USCIS has sent I-589 to EOIR

The USCIS may decline to grant an asylum application. If the applicant is otherwise removable, the USCIS will likely issue an NTA and send the Form I-589 to the applicable immigration court where an immigration judge may consider the application anew. The USCIS explains that an asylum applicant may confirm whether the USCIS has sent his or her Form I-589 to the appropriate immigration court by using the USCIS Case Status Online tool. If there is no case status listed, USCIS recommends that the applicant contact the USCIS Asylum Office with jurisdiction over the Form I-589 and ask the Office in writing to send the application to the EOIR.

If the USCIS notified the applicant that it sent the I-589 to the EOIR, the applicant does not need to re-file with the immigration court. The USCIS does recommend that the applicant bring a copy of his or her Form I-589 and any notices that he or she received from the USCIS to immigration court proceedings.

(Note: Many aliens who apply for asylum are either unlawfully present at the time of filing or their lawful status expires while the application is being considered. However, USCIS declining to grant a non-frivolous asylum application does not make an alien removable in and of itself. It is entirely possible for an alien to apply for asylum while maintaining lawful status and receive a negative decision while still maintaining lawful status or having some other form of permission to remain in the United States.)

Change of address issues

If the applicant changes his or her address while a Form I-589 is pending with the USCIS, he or she must notify the USCIS of the change of address using the Form AR-11, Alien’s Change of Address Card, within 10 calendar days of the change of address. The USCIS advises applicants to additionally submit written notification of the address change to the asylum office which has jurisdiction over his or her case.

In the event that the USCIS declines to grant the Form I-589 and refers the application to immigration court along with a Notice to Appear, the immigration court will send a Notice of Hearing to the address it has in its records. Once the court has jurisdiction over the Form I-589, the applicant must file a Form EOIR-33/IC, Alien’s Change of Address Form/Immigration Court, within five days of any change in address.

Conclusion

The five scenarios of Form I-589 processing that we discussed in this article stem from jurisdictional issues over asylum applicants. The USCIS has jurisdiction over asylum applications filed by applicants who are not in removal proceedings, while the immigration court has jurisdiction once the applicant is placed in removal proceedings. If the USCIS declines to grant an asylum application and issues an NTA to initiate removal proceedings, it is supposed to send the application to the immigration court.

As a general matter, we recommend consulting with an experienced immigration attorney if you fear returning to your home country. An attorney may best assess your situation and determine whether you have a plausible case for asylum or if some other form of relief or protection may be available under the immigration laws. The one-year filing limit for asylum makes the issue time-sensitive, although there are limited exceptions to the time limit in certain cases. If you go forward with an asylum application, an attorney will be able to assist in navigating case-specific issues such as what occurs if jurisdiction over the application changes from the USCIS to the immigration court.