Asylum Process (I-589): Affirmative vs. Defensive

Applying for asylum in the United States is one of the most sensitive immigration processes, because it rests on your personal story and your fear of returning to your country. The asylum process almost always starts with the same form, Form I-589, but it can follow two different paths: affirmative asylum and defensive asylum.

This article is general information, not legal advice. For a recommendation about your case, talk to a licensed immigration attorney or a DOJ-accredited representative of a recognized organization.

Affirmative vs. defensive asylum: the key difference

The difference comes down to one question: are you in removal proceedings?

	Affirmative asylum	Defensive asylum
When it applies	You are not in removal proceedings	You are in removal proceedings
Who decides	USCIS (asylum office)	An immigration judge (EOIR)
Where the I-589 is filed	With USCIS	With the immigration court
How it is decided	Interview with an asylum officer	Hearing before the judge

If USCIS does not grant an affirmative case and the person has no lawful status, the case is usually referred to immigration court, where it continues as a defensive case. You can read the official explanation on the USCIS asylum page.

The one-year deadline

In general, an asylum application must be filed within one year of your last arrival in the United States. There are limited exceptions, such as changed circumstances or extraordinary circumstances, but you have to explain and prove them.

If more than a year has passed since you arrived, do not assume you cannot seek protection: talk to an attorney. The same I-589 can also be used to request withholding of removal and protection under the Convention Against Torture (CAT), which have different requirements.

Form I-589 step by step

Filling out the form

Form I-589 is completed in English. It asks about you, your family, your travel history and, above all, the reasons you fear returning. Always download the current edition and read its instructions on the official I-589 page, because editions and filing rules change.

The declaration and evidence

The most important part of an asylum case is often the personal declaration: your story told in order, with dates and details. Along with it, you submit evidence that supports it, for example:

• Identity documents.
• Police reports, medical records or photos related to what you went through.
• Letters from witnesses.
• Reports on conditions in your country.

Any document that is not in English must come with a complete, certified English translation. Consistency between the form, the declaration and the evidence is essential.

Filing the form and fees

For affirmative asylum, the I-589 is filed with USCIS following the current instructions. For defensive asylum, it is filed with the immigration court and served on DHS (ICE’s Office of the Principal Legal Advisor) with a Certificate of Service. Asylum-related fees changed in 2025, so check the USCIS filing fees page before you send anything.

Biometrics, interview and hearing

After you file the I-589, you will usually be scheduled to provide your biometrics (fingerprints, photo and signature). This appointment is mandatory; missing it without a good reason can hurt your case.

• In affirmative asylum, USCIS schedules an interview at an asylum office. An officer asks you questions about your application and your declaration.
• In defensive asylum, there are first preliminary hearings (master calendar) and then an individual hearing, where the judge hears your testimony, reviews the evidence and hears from DHS.

Missing an immigration court hearing can lead to an order of removal “in absentia.” If you need to change a date, read our guide on the motion to continue.

The asylum clock and your work permit

Under the rules in effect at the time of writing, you may apply for an asylum-based work permit (category c8) once your application has been pending for 150 days, and USCIS cannot issue it before the “asylum clock” reaches 180 days. Delays you cause, such as asking to reschedule an appointment, can stop that clock. Fees, validity periods and extensions for these permits changed in 2025: always check the Form I-765 page.

The annual asylum fee

A 2025 federal law created an annual fee owed for each calendar year your asylum application remains pending, whether it is with USCIS or in immigration court. The amount is set by law and adjusted, so check the official notices and always keep your proof of payment. We explain it in detail in our article on the annual asylum fee.

Keep your address up to date

Many people miss appointments because the notice went to an old address. If you move:

• Notify USCIS within 10 days with Form AR-11 or the online change of address.
• If your case is in court, file Form EOIR-33 within 5 days.

When to get an attorney

A licensed attorney is especially advisable if you have a criminal record, a prior removal order, are detained, more than a year has passed since you arrived, or your individual hearing is coming up. EOIR publishes a list of pro bono legal service providers.

How ALIA360 can help

At ALIA360 we are document preparers, not attorneys. We can help you prepare and organize your I-589, your declaration, translations and evidence, for both affirmative asylum and defensive asylum; mail them by USPS with tracking; and keep track in your client portal, while you handle your case on your own (pro se). If your case needs an attorney, we will tell you and can connect you with a licensed one. Our team works primarily in Spanish.

Next steps

1. Confirm whether or not you are in removal proceedings.
2. Check how much time has passed since your last arrival.
3. Start writing your declaration and gathering evidence.
4. Keep your address current with USCIS and the court.

If you would like help organizing your file, reach us through the contact page.