USCIS May Refer Certain Affirmative Asylum Cases to Immigration Court Without an Interview

Effective July 28, 2026, DHS implemented an interim final rule allowing USCIS to refer certain affirmative asylum applications to the Executive Office for Immigration Review without first interviewing the applicant.

This represents an important change from USCIS’s longstanding practice of generally offering an asylum interview before referring an affirmative asylum case to immigration court.

Which cases may be referred without an interview?

USCIS may review the written application, supporting documents, background checks and other available evidence and determine that the case should be referred directly to an immigration judge.

According to the rule, cases that may be considered for referral without an interview include situations in which USCIS determines from the record that the applicant:

• Appears subject to the one-year asylum filing deadline;
• Appears subject to a statutory bar to asylum;
• Does not appear eligible based on the merits of the claim; or
• Does not merit a favourable exercise of discretion.

The rule applies to certain newly filed applications and pending cases that have not yet been scheduled for an initial asylum interview.

Does referral mean the asylum application was finally denied?

Not necessarily.

When USCIS refers an asylum application to immigration court, the applicant may present the asylum request before an immigration judge as part of removal proceedings. The immigration judge may consider asylum, withholding of removal and other relief for which the person is eligible.

However, immigration court is an adversarial proceeding. The Department of Homeland Security may oppose the application, and the immigration judge—not the USCIS asylum officer—will decide the case.

Will every asylum applicant lose the USCIS interview?

No.

USCIS states that not all affirmative asylum cases will be referred without an interview. Interviews will still be conducted before USCIS grants or denies asylum and in cases where an interview is required by applicable litigation or settlement agreements.

The rule also states that USCIS will continue interviewing applicants who maintain another lawful basis to remain in the United States. Referral without an interview generally concerns applicants who do not have another lawful basis to remain and whom USCIS determines may be placed in removal proceedings.

USCIS estimates that the rule could potentially affect as many as 444,724 cases—approximately 31% of the pending affirmative-asylum backlog—although the actual number of referrals may be lower.