Asylum & Temporary Protected Status: Should I Apply for One or the Other or Both?
Asylum is legal protection for people who have been persecuted in the past or fear harm in the future in their home countries. To win asylum, one usually must show that the person or people committing the harm are specifically targeting the asylum seeker. The harm has to be for a reason the law recognizes: race, religion, nationality, political opinion, or because of a characteristic a person cannot change or should not have to change, like gender or sexual orientation. People who win asylum are often allowed to remain in the United States permanently.
Temporary Protected Status (TPS) is a broad form of relief for people from countries the United States determines have experienced natural disasters or armed conflict. To qualify, an applicant must show they were in the United States at the designated time and that they meet other requirements. TPS applicants do not have to establish that they will be directly harmed, or that they are at greater risk compared to other people in their home countries. TPS is temporary protection and does not directly lead to permanent status in the United States. The current list of countries and time periods for TPS eligibility is available on the U.S. Citizenship and Immigration Services website.
Things to Consider
Many people who qualify for TPS may also be afraid of returning to their home countries for reasons that could form an asylum claim. Here are some things to consider if you are deciding whether to seek asylum, TPS, or both:
I have TPS and am afraid of returning to my home country. Should I consider asylum?
Since TPS is only temporary, if you have a fear of returning to your home country that is connected to one or more of the reasons underlined above, you may wish to explore asylum. Remember, having a general fear of unrest, poverty, or violence that is not directed at you may not qualify you for asylum.
I am not sure if I am in deportation (“removal”) proceedings. Is there a way for me to check?
If you were apprehended by immigration officials in the United States, or if you have applied for immigration benefits before, you may have received paperwork including a 9-digit number called your “A-number.” If you were assigned an A-number, you can check whether you are in removal proceedings and have an upcoming court date using this website: https://acis.eoir.justice.gov/en/. You can also call 1-800-898-7180. If your number is not the system, you are most likely not in removal proceedings, but could be in the future. You should regularly check to make sure you do not miss a hearing.
I have TPS and am not in removal proceedings. Should I apply for asylum?
If you are not in removal proceedings and apply for asylum, the government could pursue your deportation if your asylum case is not granted. Your case could be referred to immigration court for additional review of your asylum claim. While not common, it is possible for an immigration judge to enter a removal order against someone who has TPS. If you are not in removal proceedings and you only apply for TPS, the chance of being placed in removal proceedings when TPS ends may be lower. It is important to talk to an attorney about the strength of your asylum claim before filing so you can make an informed decision about whether to take this risk.
I have TPS and am in removal proceedings. Should I also seek asylum?
If you have TPS and are in removal proceedings, you can ask the judge to continue or administratively close (or “pause”) your case while you have TPS. Or, you may prefer to proceed with your asylum claim in order to present facts and evidence while they are fresh. Remember, in order to win asylum, you must show that the harm you fear is because of a protected reason. If you fear harm because of a protected reason – and not just because of general problems in your country – you may wish to seek asylum in removal proceedings. The court may pause your case if you are seeking asylum but appear eligible for TPS, but you can ask the court to proceed with your asylum case if you wish. If your asylum case is denied while you still have TPS, you could still ask the court to pause your case, but it is possible that the asylum denial will cause problems in your case when TPS ends.
If I have already applied for asylum and now want to apply to TPS, can I do that?
If you have a pending asylum application and also qualify for TPS, you can apply for TPS. If your asylum case is in immigration court, you could ask the judge to continue or administratively close your asylum case for as long as you have TPS. If you choose only to seek asylum for now, you still might be able to apply for TPS in the future as long as you otherwise meet the TPS requirements.
If I apply for TPS now but may want to apply for asylum in the future, will I be able to do that?
It is usually necessary to apply for asylum within one year of when you arrive in the United States. However, people who have other protection – like TPS – may qualify for an exception to the one-year filing rule if they file promptly for asylum after their TPS status comes to an end. People who choose to seek TPS now and wish to consider asylum in the future may be able to apply for asylum when TPS ends, but should begin preparing early for that possibility. Remember that country conditions and evidence may change over time, so waiting to apply for asylum may be risky.
What if I want to apply for asylum but cannot find an attorney to help me?
Some attorneys who are able to help with TPS applications may not be able to assist with asylum matters. Asylum cases take much longer than TPS applications and they require substantially more resources. If your TPS attorney cannot help you with your asylum case but you still want to apply for asylum, you could find another attorney to help you with that part of your case. It is very important that you tell any attorney you work with about all applications you have filed or plan to file. If you cannot find an attorney to help you with your asylum case, you could apply for asylum without an attorney. If you are in removal proceedings before the Chicago Immigration Court and would like help filing for asylum on your own, you may call NIJC’s Immigration Court Helpline at 312-660-1328.
This document was prepared by the National Immigrant Justice Center (NIJC). It is intended to provide general guidance about asylum and TPS, but is not a comprehensive guide to either form of relief and should not be considered legal advice or used to determine eligibility for TPS or asylum.
