A Short Guide to Asylum Eligibility in the US in 2026

Author: Berd Klauss

Asylum law continues to change at both the state and federal levels, which makes the process hard to follow without guidance. While you can benefit from having an asylum attorney in NYC, understanding the basics of asylum eligibility and procedures can help you protect your rights and improve your chances of a favorable outcome.

What do you need to apply for asylum in the US?

To apply for asylum in the United States, you must already be physically present in the country. You also need to show a genuine fear that returning to your home country would put you in immediate danger.

This fear must connect to persecution based on a protected characteristic. You may be eligible for asylum if you have experienced persecution based on:

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

An asylum attorney in NYC can work with you and help you demonstrate that the harm you fear directly relates to at least one of these categories.

How to apply for asylum in the US

There are three primary pathways into the US asylum system. Each option follows a different process and timeline, and some apply only if you are already involved in immigration or removal proceedings.

  • Affirmative asylum - If you’re not in removal proceedings, affirmative asylum may apply to you. Your asylum attorney in NYC can help you file Form I-589, also known as the Application for Asylum and for Withholding of Removal. It’s best to do this within one year of your arrival in the United States. You may need to attend an interview with a USCIS asylum officer after filing your application. This process doesn’t require a credible fear screening (unlike other paths), and it doesn’t automatically involve removal proceedings or a review under the Convention Against Torture.
  • Positive credible fear determination - If you're placed in expedited removal, you can still request asylum by telling immigration officials that you're afraid to return to your home country. If the officer agrees that your fear of persecution or torture is credible, your case can move forward. Depending on the circumstances, you may be scheduled for an asylum interview or sent to immigration court for a hearing before a judge.
  • Defensive asylum – If you are already facing deportation, you can formally request asylum as a defense against removal. This option only applies if you are already in active removal proceedings before the Executive Office for Immigration Review. This process differs from affirmative asylum and often involves court hearings and stricter procedural rules, making it necessary to have legal representation from a seasoned asylum attorney in NYC.

Are you applying for asylum in the US?

You need a good lawyer you can trust, because your asylum case may involve personal or painful experiences — and being able to speak openly about them can affect the outcome.

Berd & Klaus PLLC has asylum attorneys in NYC. Call 212-461-7152 to schedule a consultation and discuss your eligibility for asylum in the US.

About the Author:

Patrick Klauss, Esq., is an immigration attorney and partner at Berd & Klauss, PLLC , who specializes in all aspects of immigration law, from visas to deportation and waivers. Berd & Klauss, PLLC is a boutique, full-service immigration firm in New York dedicated to helping companies and individuals secure immigration benefits in the United States.