Affirmative vs Defensive Asylum: Differences in USCIS Processing Halt

People often hear the terms affirmative asylum and defensive asylum and feel confused, especially when news talks about a USCIS processing halt or long delays. Both paths can lead to protection in the United States, but the steps, the place where you file, and the kind of hearing you get are very different. Knowing which path you’re on helps you plan, stay calm, and work better with your lawyer.

Two Paths to Asylum Protection in the U.S.

The main difference is this:

• Affirmative asylum is for people not yet in removal (deportation) proceedings, who apply first with USCIS.
• Defensive asylum is for people who are already in removal proceedings in immigration court, using asylum as a defense against deportation.

In both paths, you use the same form, Form I-589, Application for Asylum and for Withholding of Removal, but you file it in different places. With affirmative asylum, you send the form to USCIS (U.S. Citizenship and Immigration Services). With defensive asylum, you file the same form with the immigration court (EOIR) after you receive a Notice to Appear (NTA).

You can find the official form here: Form I-589, Application for Asylum and for Withholding of Removal. USCIS also explains asylum rules and eligibility on its asylum information page: USCIS Asylum.

Affirmative Asylum: Step-by-Step (USCIS)

Affirmative asylum is usually less formal and non-adversarial. That means there is no government lawyer trying to prove you’re wrong during the first stage.

Stage 1 — Preparing and Filing with USCIS

You are in the affirmative process if:

• You came to the U.S. with a visa or were otherwise admitted, and
• You are not in removal proceedings.

Your main tasks are:

• Complete and sign Form I-589 in full.
• Write a clear personal statement about why you fear persecution.
• Gather evidence such as:
  • Identity documents
  • Police reports, medical records, threats
  • Country condition reports
• File the form with USCIS according to the instructions.

This preparation stage often takes weeks or months, depending on how quickly you and your lawyer collect documents.

Stage 2 — Waiting for Biometrics and Interview

After USCIS receives your application, you can expect:

• A receipt notice confirming your filing.
• A biometrics appointment (fingerprints and photo).
• A notice for your asylum interview at a USCIS asylum office.

Because of backlogs or a USCIS processing halt, the wait for an interview can become long. During this time:

• Keep your address updated with USCIS.
• Save all USCIS notices.
• Keep collecting any new evidence, such as fresh threats or new reports from your country.

Stage 3 — The Asylum Interview

At the interview:

• An asylum officer reviews your file.
• The officer asks questions about your story, your fears, and your past.
• There is no ICE attorney arguing against you at this stage.
• You may bring an interpreter if needed and, at your own cost, an attorney.

The interview usually lasts about an hour or longer, depending on the case. The officer will not decide on the spot. You will either receive the decision later by mail or be called back to pick it up, depending on the local office.

Stage 4 — USCIS Decision or Referral

After review, the asylum officer can:

• Approve your asylum: You receive asylum status, can later apply for a green card, and may petition for certain family members.
• Deny and not refer you, if you still have another lawful status.
• Deny and refer your case to an immigration judge if you don’t have lawful status.

A referral means your case changes from affirmative asylum to defensive asylum in court. You get a new chance to present your claim, but now in a more formal setting.

Defensive Asylum: Step-by-Step (Immigration Court)

Defensive asylum is for people who are already in removal proceedings. This often includes people who:

• Were stopped at the border without proper papers.
• Overstayed a visa and were later arrested by ICE.
• Had an affirmative asylum case denied while out of status.
• Were placed in expedited removal, but passed a credible fear interview.

Stage 1 — Notice to Appear and First Court Hearing

The process starts when the Department of Homeland Security issues a Notice to Appear (NTA). This document lists the reasons the government thinks you can be removed.

You then:

• Receive a hearing date at immigration court.
• Appear before an immigration judge for a first, short hearing.
• Tell the judge that you want to apply for asylum.

You will be given a date to submit Form I-589 to the court if you have not already filed it.

Stage 2 — Filing Form I-589 in Court

Your tasks include:

• File Form I-589 with the immigration court.
• Provide copies to the ICE attorney.
• Attach evidence and witness lists as the judge orders.

This stage is critical because defensive asylum is adversarial:

• An ICE attorney appears in court.
• They can cross-examine you and your witnesses.
• They may argue that you do not qualify for asylum.

Stage 3 — Merits Hearing and Decision

Later, you attend a full merits hearing, which can last several hours or spread over multiple dates. During this hearing:

• You testify under oath.
• Your witnesses, if any, testify.
• The judge reviews all documents and country reports.
• The ICE attorney questions you and argues the government’s position.

After this, the judge either announces a decision in court or issues it later:

• If the judge grants asylum, you receive asylum status like an affirmative applicant.
• If the judge denies asylum, you may appeal to the Board of Immigration Appeals (BIA).

When an Affirmative Case Becomes Defensive

If your affirmative asylum is denied and you don’t have lawful status, USCIS will:

• Refer your case to immigration court, not simply close it.
• Send your file to the court so the judge can review it.
• Place you into removal proceedings where you can request defensive asylum.

This gives you another chance to tell your story, now with a judge deciding and an ICE attorney present.

Legal Help and Practical Tips During Delays or Halts

In both affirmative and defensive asylum:

• You have the right to a lawyer, but the government does not give you one for free.
• You must find and pay your own attorney or seek a free or low-cost legal services provider.
• According to analysis by VisaVerge.com, having legal help often makes the process clearer and less stressful.

During any USCIS processing halt or slowdown:

• Keep copies of all filings and receipts.
• Update your address with both USCIS and the immigration court, if you have a case there.
• Follow deadlines set by the court or by USCIS, even if interviews or hearings are delayed.
• Save fresh evidence that shows ongoing risk or new events in your home country.

Important: Knowing whether you’re in affirmative asylum with USCIS or in defensive asylum in immigration court helps you stay organized, ask better questions, and protect your chance for safety in the United States.

Quick Comparison Table

If you have specific questions about your case or need help finding legal resources, consider contacting a qualified immigration attorney or a legal aid organization.