<  Eligibility

One-Year Filing Deadline

In general, asylum seekers must file an asylum application within one year of their last arrival to the U.S. If an applicant misses the one-year filing deadline, their asylum application will be denied unless they meet a legally recognized exception to the deadline.

Exceptions to the one-year deadline fall into two categories, “changed circumstances” and “extraordinary circumstances.” Even if an applicant meets one of these exceptions, they must still file within a “reasonable period of time” after their changed or extraordinary circumstances have occurred.  Please note that exceptions to the filing deadline are considered on a case-by-case basis and that an exception that worked for one applicant may not work for another. Even so, the following is a list of some (but not all) possible “changed circumstances” that have been accepted in the past by asylum officers and immigration judges:

  • The applicant has maintained lawful visa status (such as student, or H1B) since coming to the U.S.
  • The applicant did not “come out” as LGBTQ until more than one year after he or she came to the U.S.
  • The government of the applicant’s home country has instituted recent legal or political changes to criminally penalize or prosecute LGBTQ people
  • The applicant has taken recent hormonal, surgical, or other gender-affirming transitional steps in the United States to more closely align their physical appearance with their gender identity
  • The applicant received a recent HIV or AIDS diagnosis and is from a nation where living with HIV may increase the chances that they are persecuted

Examples of “extraordinary circumstances” may include:

  • The applicant suffers from medically documented Post Traumatic Stress Disorder or severe depression as a result of trauma and was consequently unable to file for asylum when they first came to the U.S.
  • The applicant consulted with an attorney who committed malpractice and the applicant filed a complaint against the attorney
  • The applicant was younger than 18 years of age when they arrived in the United States and filed for asylum shortly after turning 18 (please note that if designated as an unaccompanied minor, special rules may apply to the case even if the asylum seeker over 18)

Sometimes, an applicant may have both changed and extraordinary circumstances. For example, if an applicant came out of the closet and then was kicked out of their house for doing so and had nowhere to live for several months, the combination of those two factors might excuse a lengthier delay than just one or the other.

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.