New USCIS policy for the scheduling of affirmative asylum interviews

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Asylum is a form of protection that the U.S. government affords to foreign nationals who have a “well-founded fear” to return to their home country based on race, religion, nationality, political opinion or membership in a particular social group. There are two ways of applying for asylum: affirmatively and defensively. An affirmative asylum application is to be presented to USCIS (one of the agencies responsible for overseeing the U.S. immigration system), while defensive asylum can only occur when the applicant is in removal proceedings in Immigration Court.

On January 31, 2018, USCIS announced that it will schedule asylum interviews for recent affirmative applications ahead of older filings, in an attempt to stem the growth of the agency’s backlog. This “last-in, first-out” system was first established in 1995 and had been in place for almost 20 years. Then, in December of 2014, the Obama administration decided to prioritize the oldest cases.

In its news release, USCIS revealed that the agency is “facing a crisis-level backlog of pending asylum cases” that has grown by more than 1750 percent over the last five years, and that the rate of new applications has more than tripled. The agency also stated that the backlog makes the system susceptible to fraud and abuse, and that many individuals with no legitimate claim have been using the backlog to file non-genuine asylum applications solely to obtain a work permit. This has been possible because virtually all applicants can apply for a work permit sometime after filing for asylum. Then, once they obtain the work permit, they can work legally while their application is “stuck” in the system for years. USCIS has also stated that the backlog is “detrimental to legitimate asylum seekers,” and that it can be “exploited and used to undermine national security […].” Therefore, to deter individuals from using the backlog solely to obtain employment authorization by filing non-genuine asylum applications, USCIS put in place the following system of priorities for the scheduling of affirmative asylum interviews:

  • First priority: Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS.
  • Second priority: Applications that have been pending 21 days or less.
  • Third priority: All other pending affirmative applications, starting with newer filings and working back towards older filings.

USCIS states that this “last-in, first-out” system will allow the possibility to identify frivolous, fraudulent or otherwise non-meritorious asylum applications earlier, so to place those applicants into removal proceedings (this is because, in affirmative cases, if USCIS does not grant asylum and the applicant is not in status, the applicant is referred to Immigration Court and placed into removal proceedings). Therefore, the new system is supposed to discourage individuals without a legitimate asylum claim from filing non-genuine applications to take advantage of the backlog and obtain a work permit. On the other hand, while USCIS reported concerning numbers about the backlog and linked the backlog to fraud, many immigrant rights advocates noted that there are more pieces to this puzzle. For example, many argue that the growth of the backlog has followed a global displacement crisis due to wars, conflicts and persecution, which caused people to flee their homes. Furthermore, it was also noted that the “last-in, first-out” system may cause additional burdens and suffering to legitimate asylum seekers who are already in the backlog, because they might have family members stranded abroad, their case will be delayed and they will likely have more difficulty obtaining witnesses and evidence to support their claim.

In sum, there is a lot to say about these new changes, and asylum seekers should get the help of an immigration attorney to deal with the changes, especially in light of the fact that the asylum process may ultimately result in removal from the United States.

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Alessandro Giordano

Alessandro Giordano is a multilingual and multicultural immigration attorney. Practicing out of Tampa, FL, he serves clients nationally and worldwide.

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