This post is by Lindsay M. Harris, asylum attorney extraordinaire--

Over the summer, the U.S. government proposed a set of regulations that will dramatically change asylum law. In response, the general public and immigrant advocates submitted close to 90,000 public comments. After receiving the comments, the government changed some of the proposed rules (slightly), but the new rules are set to go into effect on January 11, 2021.

There will likely be legal challenges (lawsuits) to try to stop these regulations from going into effect. But, it’s always hard to tell what will happen. For that reason, if you plan to file for asylum, it is best to do so before January 11, when the new rules go into effect.

One of the changes made between July 15, 2020 (the proposed rule) and December 2020 (the final rule) is that the new rules will not be retroactive. This means that they will not apply to anyone who has filed their I-589 application for asylum before January 11, 2021. The government has stated that the new rules will apply now, despite any legal challenges to any sections that the government views as simply codifying existing case law--

Although the rulemaking itself is not retroactive, nothing in the rule precludes adjudicators from applying existing authority codified by the rule to pending cases, independent of the prospective application of the rule. Accordingly, the statutory authority and case law incorporated into the rule, as reflected in both the [notice of proposed rulemaking] and the final rule, would continue to apply if the rule itself does not go into effect as scheduled.

Regardless of retroactivity issues, it is likely much better for asylum seekers to have their applications filed prior to January 11, 2021. This is especially true for people fleeing harm from non-government actors, for asylum seekers fleeing gender-based harm, and for individuals who have spent time in another country before coming to the United States.

If you are seeking asylum, please consult with an immigration attorney as soon as possible. An I-589 asylum application takes hours to properly fill out, and you will need to have time to work with an attorney to prepare your application and get it mailed before January 11, 2021.

If you are an asylum seeker in need of assistance, please contact, Vice-Chair of the American Immigration Lawyers Association’s National Asylum & Refugee Committee and Associate Professor and Director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.

Originally posted on the Asylumist: