In criminal law, if an accused person spends time behind bars before his conviction, that time can be credited towards his total sentence. Is there an equivalent concept in asylum law, where applicants routinely wait years for a decision in their case?

The short answer, sadly, is no. Of course, there are many benefits to winning asylum, but there is no "credit for time served" in asylum purgatory. Waiting for years before your case is approved does not make the journey to residency or citizenship any faster. But there are things that the Biden Administration can do to ease the journey--both during the time asylum is pending and after asylum is granted.
While Asylum Is Pending


Lower the Burden of Proof: As the years go by, some asylum cases improve, but most become weaker (I wrote about winning old cases here). At the same time, asylum seekers become more integrated into society. They become part of their community and their community invests in them and relies on them. At some point, it becomes unfair to ask such people to leave. To mitigate the harm caused by denying old cases, the burden of proof should be eased. This way, more long-pending cases will be approved, and asylum seekers who have been waiting for years (through no fault of their own) will be more able to remain in the United States.

Travel for Asylum Seekers: Most affirmative asylum seekers are eligible for Advance Parole, which allows them to leave the U.S. and return. Unfortunately, the process of obtaining Advance Parole for asylum seekers is long and unpredictable. That is not the case for other applicants. For example, people getting a Green Card based on marriage can obtained Advance Parole as a matter of course. USCIS should allow asylum seekers to apply for Advance Parole when they apply for the work permit, and the Agency should issue a "combo card," which is valid for work and re-entry (as they do for other types of applicants). If asylum seekers were able to more easily travel during the long wait, it would ease the burden of family separation.
After Asylum Is Granted


Refugee Travel Document: Once asylum is granted, asylees can apply for a Refugee Travel Document. The wait time to obtain an RTD is quite long (1+ years) and the document is only valid for one year, which makes it difficult to use. USCIS could solve this problem by automatically issuing the RTD when asylum is approved and by expanding the validity period to five years or longer. Improving the RTD seems like such a simple fix, and yet USCIS continues to dither while asylees suffer. Hopefully the Agency will take action to improve the RTD before the end of President Biden's term.

Follow to Join: After a person wins asylum, she can file a form I-730, so her spouse and children can join her in the United States. This is a two-step process that can easily take two years. First, USICS adjudicates the I-730, and then the case goes for processing at the U.S. consulate. It seems to me that the first step can be incorporated into the asylum interview itself, so that when asylum is approved, the I-730 is automatically approved and sent for consular processing, where the asylee's dependent is vetted and issued a travel document.

Applying for a Green Card: Once a person receives asylum, they can apply for a Green Card. The old rule required that they wait for one year after winning asylum before they could apply for the card. Under new rules, an asylee can apply for a Green Card as soon as asylum is granted. However, USCIS cannot actually issue the card until the asylee has one full year inside the United States after asylum is approved. What happens if USCIS processes the Green Card application before an asylee has one year in the U.S.? I do not know, but I fear that the application will be denied, and the asylee will lose her application fee and have to start the process all over again. For this reason, most lawyers recommend waiting six months after winning asylum to apply for the Green Card, since it seems very unlikely that USCIS would complete a Green Card application in less than six months (and hence, there is little danger of a denial). USCIS could easily solve this problem by announcing what it will do when a Green Card application is completed and the applicant does not have the full year inside the U.S. Again, this is an easy fix, and it would be nice if USCIS could just get it done already.

Back Dating the Green Card: When an asylee receives the Green Card, it should be back-dated one year. Meaning that if you get the card on June 5, 2024, it should be dated June 5, 2023 (I say "should" because sometimes USCIS forgets to back date the card). The purpose of back-dating is to give asylees some credit for the period when the asylum case was pending. The rule related to back-dating the Green Card is contained in the Immigration and Nationality Act, meaning that it can be modified only by Congress. While I suppose it is not urgent when compared to other problems, given that asylees now often wait many years for a decision, Congress should increase this one year period to reflect the reality of these long delays.

Under U.S. law, we generally do not have a duty to rescue others who we see in distress. But if we do decide to rescue someone, we have a duty to perform competently. The situation with asylum is analogous. Our country does not have to offer asylum to those fleeing persecution. But we have taken on that responsibility. As such, we have a duty to act competently. Leaving people in limbo, separated from their families for years represents a failure of that duty, and a moral failure as well. USCIS should take action to ease the burden for people who have relied on us, and who have been waiting and hoping for a resolution of their asylum cases.

Originally posted on the Asylumist: www.Asylumist.com