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Apr 12, 2024 | Nancy Chen

Are Asylum Seekers Illegal? Migrants in the U.S., Explained

Many politicians have demonized asylum seekers in the past year, calling them “illegal” and “poisoning the blood” of the United States. But are asylum seekers illegal? Do migrants lead to an increase in crime rates? This article will clarify the myths and misinformation surrounding asylum seekers.

What are asylum seekers?

An asylum seeker is someone who cannot obtain protection in their home country and thus has to flee in search of safety and protection in another country. They may be of any age, gender, socio-economic status or nationality — though the majority come from regions of the world suffering from conflict, disaster and weak rule of law, according to International Rescue Committee.

Asylum is a protection granted to foreign nationals already in the U.S. or at the border who meet the international law definition of a refugee. Refugees are people who are unable or unwilling to return to their home country and cannot obtain protection in that country because of past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion,” as per definition by the United Nations 1951 Convention and 1967 Protocol. The U.S. Refugee Act of 1980 incorporated this definition.

Read More: How to Apply for Asylum in the United States

Unlike refugees, asylum seekers must apply within the U.S. or at one of its official ports of entry. There are three ways to apply for asylum: affirmative asylum, defensive asylum and expedited process, as the Council on Foreign Relations explains. Affirmative asylum usually applies to individuals with temporary legal status, like short-term visas, who need to apply within a year of arriving in the U.S. except for extraordinary circumstances. Defensive asylum means individuals can apply for asylum against deportation if their asylum applications are denied or if they are caught lacking valid documentation.

In an expedited process, migrants need to be found to have a “credible fear of persecution” when they are interviewed. Those who have passed the credible fear screening can proceed to the next step of applying for asylum without having to go to court. Applicants will be released, but will be required to wear a tracking device before attending an asylum merits interview within 21 to 45 days. Meanwhile, immigration officers have the power to quickly deport applicants who haven’t passed the screening, but these applicants have the right to appeal.

Read More: Credible Fear Interview: A Critical Step in the Asylum Process

Depending on their circumstances, migrants might wait for years before their cases are heard by immigration judges, partly also because of the USCIS backlog. All three processes require the migrant to be physically present in the U.S.

Are asylum seekers legal or illegal?

Yes, asylum seekers are in the country legally. The current law in the U.S. allows any noncitizen, whether or not they have a valid visa, to enter the country and claim asylum. This holds true regardless of one’s legal immigration status. An asylum seeker has to be within the U.S. or at a port of entry to be able to apply.

What are Biden’s asylum restrictions?

As migrant arrivals continued to grow, Biden announced a strategy in early 2023 discouraging unauthorized border crossings. As part of the rule, migrants who “crossed the US-Mexico border between May 11, 2023, and May 11, 2025, traveled through a country not their own before arrival, and did not use CBP One to enter at the border, will have to either meet an exception or overcome a ‘rebuttable presumption’ that they are not eligible for asylum,” explained to Documented through an email by Amy Grenier, the Policy and Practice Counsel at American Immigration Lawyers Association. Unaccompanied minors are exempted from the rule.

The implementation of this policy, however, has not been uniform. It also depends on the capacity to process the number of irregular border crossers, Jean Reisz, Clinical Associate Professor of Law at USC Gould School of Law, wrote in an email.

Both experts said Biden’s rule makes it extremely difficult for migrants to seek asylum. Navigating the exceptions usually requires an immigration attorney as the process is very complex, but many migrants do not have access to attorneys.

Nonprofits offering pro bono services to immigrants are often at capacity. The cost of private attorneys varies, and it requires a large commitment. “It can take a minimum of 50 to 75 hours for an attorney to prepare a case – and that’s time spread out over months, not one marathon session,” Grenier shared.

Are migrants increasing the crime rate?

Following migrants’ assault on police at Times Square and the death of Laken Riley, government officials and the media have pushed a narrative that migrants are criminals. However, multiple studies across the years have found no correlation between migrant arrivals and crime rates.

For example, New York police data show no crime surge since April 2022, when Texas Gov. Greg Abbott started to send migrants to the city. In fact, rape, murder, shootings and other major categories of crime have decreased, while the monthly number of robberies and grand larcenies has fluctuated. Even though over 170,000 migrants have arrived since last spring, there has been no significant jump in the crime rate. In fact, several studies show that immigrants are less likely to commit crimes than the U.S.-born people, reported by NPR.

Are asylum seekers eligible to work?

Asylum seekers can work, but it could take 10 to 11 months for them to receive the necessary work authorization. They can request an initial work permit through Form I-765 Application for Employment Authorization 150 days after submitting Form I-589 with no decision from USCIS. They can receive the work permit 180 days after filing the asylum application. More information is available at the Asylum Seeker Advocacy Project website

Also Read: What the 60-Day Eviction Rule Means for Migrants in NYC Shelters

NYC and many other major cities have instituted shelter stay limits of 30 to 60 days to encourage migrants to leave the shelter system. However, it is illegal for newly arrived asylum seekers to work. Therefore, many politicians are calling on the federal government to speed up the work authorization process for asylum seekers.

Also Read: AOC: White House Needs To “Get Out of Our Way”

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