Diplomats who cannot return to their countries can claim asylum, like anyone else. But an alternative form of relief is available: Section 13 of the Immigration and Nationality Act allows individuals who entered the United States under diplomatic status to obtain a green card. To be eligible for residency under Section 13, you must demonstrate that:
- You entered the United States as an A-1, A-2, G-1, or G-2 nonimmigrant
- You failed to maintain your A-1, A-2, G-1, or G-2 nonimmigrant status
- Your duties were diplomatic or semi-diplomatic
- There is a compelling reason why you or your immediate family cannot return to the country which accredited you as a diplomat
- You are a person of good moral character
- You are admissible to the United States for permanent residence
- Granting you a green card would be in the national interest of the United States
Several of these requirements are a bit tricky. First, you must show that your duties were diplomatic or semi-diplomatic. “Aliens whose duties were of a custodial, clerical, or menial nature, and members of their immediate families, are not eligible for benefits under section 13.” See Matter of —, Administrative Appeals Office, July 23, 2007. Second, you must show a compelling reason why you cannot return to the country that accredited you. Fear of persecution would qualify as a “compelling reason,” but the law does not seem limited to such claims. Id. (however, the inability to support oneself in the home country is not a “compelling reason”). Finally, you would need to show that granting residency is in the “national interest” of the United States. The only information I could find about this requirement is in the AAO decision, mentioned above, which notes that being a healthy, hard working man who can contribute to society is not the type of advantage to our national interest envisaged by the Act. Id.
To apply for section 13 relief, a diplomat must file an I-485 form with supporting documents. More information about the requirements is available here. The diplomat may also apply for a work permit (I-765) while the application for permanent residency is pending.
So what is the advantage of section 13 adjustment over asylum? For one thing, it appears that section 13 adjustment does not require any nexus between the feared harm and a protected ground (race, religion, nationality, particular social group or political opinion). Another advantage is that the person immediately obtains a green card; an asylee must wait for one year before applying for residency. One disadvantage to section 13 is that the diplomat would not be eligible for some of the special benefits available to asylees (like housing assistance and job placement). Another disadvantage is that diplomats must show granting them residency is in the U.S. “national interest.”
I imagine section 13 would come in handy for diplomats from a country like Syria. Although I have not heard about mass defections from that embassy, one can only hope that professional diplomats would have the courage to abandon a regime that is murdering thousands of people. Section 13 allows such people to take a stand against their government and remain safely in the United States.
Hello, thank you for the info. I have a question, what duties are considered “semi diplomatic”? Thanks.
I do not know that there is a specific definition for purposes of Section 13, and given what I know of Section 13, USCIS will interpret that phrase narrowly. If you plan to do a Section 13 case, you may want to have a lawyer evaluate the chances for success first. Many people who do such cases are better off doing asylum cases. Take care, Jason
Thank you so much for answering me. I already have the date for the interview of adjustment of status based on section 13 and I would deeply appreciate if you could tell me what to expect in the interview? Based on your experience, what questions do they ask?
They ask the questions on the I-485 form, at least many of them. They would also certainly ask about your old job, why you can’t go to your country, and (I suppose) how granting you a GC is in the US national interest. You may want to talk to a lawyer to get advice about this, as every case is different and if there may be issues in your case that you need to be prepared to discuss. Take care, Jason
Hello Jacqueline, i hope ypu achieve your interview, long story short, i recently applied for asylum, about a year ago, i did it by myself, recently doing research, i discovered i would have applied for a green card directly fro my A2 status, so ere you in a similar case or yours was totally different, i waould appreciate your help.
The article above describes the Section 13 process, which I think you are talking about. Unless the government of your country has changed (for example, Afghanistan), this type of case is very hard to win. Also, there are very few Section 13 green cards available each year. You might want to talk to a lawyer about this, but for most people in this position, asylum is the more realistic option (though you can do both asylum and Section 13 if you want). Take care, Jason
Hi Jason,
We applied for section 13 in august 2021. We came here as a Pakistani diplomates. Our daughter was born in US with a rare heart disease and thankfully she had her surgery right after, now she has been diagnosed with Autism. I am a special education teacher aid and doing my masters in Special education teaching. Do you think it is in US nation interest and we might have a chance or no we should apply for hardship visa? Someone told us to apply for that.
Thank you
I do not know what you mean by a “hardship visa.” As far as I know, the only option in that regard is temporary, such as humanitarian parole or an extension of an existing non-immigrant status. I think you should talk to a lawyer about options, as Section 13 cases are almost always denied unless there is a significant change in the home government (such as in Afghanistan). Also, there are only 50 visas available per year under Section 13, and I suspect most of those will be used for Afghans. Hopefully, the case will work out, but I do think you should plan for alternatives. Good luck, Jason
Hi Jason,
My family applied for section 13, and our application was denied after
the interview. If I resubmit I-485, would our work permit still be
valid till the next decision? Our work permits expire in 5 years’
time, except for one which expires much earlier.
Please let me know. Thank you.
Warm Regards,
Ayesha
The EAD should technically become invalid when the underlying application (the I-485) is denied. I do not know if there is anyway for an employer to know that, or whether it appears on e-verify. Filing a new I-485 would not affect the current EAD, since that would be a new application. You could file an I-485 and a new I-765 to get a new EAD, I guess. With few exceptions (such as Afghan diplomats after the Taliban takeover), it is very difficult to win a Section 13 case and it may make more sense to file for asylum. Maybe you want to talk to a lawyer about that to see if it is a good option. Take care, Jason
[…] I wrote more about Section 13 here. […]
Hi Jason,
First, Thanks for the sweet blog and Keep up the great work!!
Who do you recommend in NY regarding this?
Sorry, I do not have anyone to recommend there. You can check http://www.aila.org and search for attorneys who might be familiar with Section 13. Take care, Jason
Hello Jason
Thank you for taking your time to response to people concerns. Does someone that was denied section 13 asylum but still in status be able to apply for students visa. Thank you.
If you are still in-status, you can normally apply to change to a different status without leaving the US. The denial of a Section 13 application should not affect that. Take care, Jason
Hi Jason,
My Section 13 case was “recommended for approval” after interview earlier this year. It is now at NBC awaiting adjudication. From your experience, how much time will adjudication take?
Thank you so much!
I have never gotten a Section 13 case that far – the two I filed were denied (in my opinion, contrary to the plain language of the statute), so getting as far as you did is an accomplishment. However, I have no idea how long you will wait. There are only about 50 cases approved per year (or less) and so there is no chart showing this. When you get the final decision, please let us know. Thank you, Jason
Hello Jav,
Would truly appreciate if you could share your lawyer’s contact information as i’m considering applying for Green card through Section 13.
Thank you
I represented myself
Hi, how long did you wait until you got you green card after approved?
Thank you so much. Plz note that he has valid visa till dec2018. Do you think that he can be treated as out offf status as his section-13 case is denied? In this situation can he apply for F-1 visa without going for appeal against section-13?
Thanks for your guidance.
Sorry, I would have to see the documents to know. He needs to consult with a lawyer about the case to get an answer on this. Take care, Jason
Thank you so much..could plz tell me what you mean by if i have status? If section_13 denied then does it mean out of status ? There appeal time of 30 days? Will not that be counted as having status?
Thank you so much.
Mak
In that situation, I am not sure. I do not think the appeal time is considered “in status”, but I do not know – You need to talk to a lawyer about that to check the law. Take care, Jason
Dear sir,
Your suggestions are very useful. I have question for you. Can a person apply for change of status to student visa after he is denied under section 13.
Another question. If a person applied for approval under 140 for labor certification on the same day on which date his application was denied under section 13. Then what he will do or his status is maintained because of. Application under 140 ?
Appreciate if you kindly respond these issues.
Best wishes..
Mak
You can only apply for a change of status if you are still in-status. Otherwise, you normally need to leave the US to get a new status, and this may or may not be possible, depending on the case. I do not do I-140 cases, and so I do not know about that. Take care, Jason
Hi sir,
I apply asylum on 2011 , then I got job on 2015 with embassy visa A2 so I wanna know is my asylum can be terminated? Or can still can be granted
The fact that you changed visas does not automatically end your asylum case. If you want to withdraw the case, you have to contact the asylum office and tell them. You can find their contact info if you follow the link at right called Asylum Office Locator. The fact that you are working for your embassy may very well cause your asylum case to be denied, especially if your case involves fear of your home government. Take care, Jason
Hello, Hope you are doing well. I have pending asylum case in USA. In the meanwhile I am eligible for section 13 too. Can apply for section 13 while my asylum is pending? If yes, would applying section 13 affect my pending asylum case in anyway.
Thank you very much in advance.
You can apply for both. You should know that section 13 cases are very difficult to win, and it might be a good idea to talk to a lawyer who has done such cases before you try that. Take care, Jason
Dear Jason,
Thank you for your help.
My first i-485 has been denied after an interview. I appealed. Appeal was also denied.
I sent I-485 again and few days back I got a letter that my EAD and AP were approved. I have two questions:
1. Since my EAD has been approved , Shall I get the new EAD card shortly?
2. Will I get an interview call again?
Thank you.
1 – You should. 2 – Probably, but you should be prepared to address whatever the basis for the denial was. Take care, Jason
Jason,
What does being scheduled for an Adjustment of Status interview (derived from Section 13 application) mean?
That is, is it just part of procedure? does it mean anything? good…? bad…?
Thanks!
It is part of the procedure, but it is probably something good, as the large majority of cases are denied without an interview. Good luck, and please let us know what happens. Thank you, Jason
Hello Rene,
Would truly appreciate if you could share your lawyer’s contact information as i’m considering applying for Green card through Section 13.
Thank you
Jason,
I have my Section 13 EAD/Advance Parole. Are there any reprecussions for traveling outside of the US with such an application pending? Moreover, what about traveling to home country quickly, for a few days, will that be seen in a negative light by USCIS for the purposes of this application?
THANK YOU!
If you have AP, you should be able to travel, but if you go to the home country when you are claiming that you fear going there, it is likely that your Section 13 application could be denied on that basis (though most section 13 applications are denied anyway). Take care, Jason
hi Jason, you are a great man, answering each and every person in a very nice way, you are simply great,
i want answer to my question in detail,
my section 13 case for AoS (i-485) was denied objecting “compelling reason” in September 2016,
today i-290B denied putting more serious objections from “diplomatic duties” to “diplomacy” which is defined for policy makers, how can i beat uscis in court to beat this fraud?
i have compelling reason and councelor diplomatic duties which was not accepted by uscis. can i share my documents with you for consultation? if not, i have no other option to leave USA, because i have no other option to file immigration to stay in USA.
Section 13 cases are almost always denied for one reason or another. USCIS interprets the law very strictly (and in my opinion, improperly). I think the only way to win such a case is to take the issue to a federal court. A better option for most people is to apply for asylum, but of course, it depends on the person and the case. My schedule would not permit me to do a consult about your case until next week at the earliest, but if you want to set that up, you can email me and I will send you instructions for how to do it: Jdzubow@dzubowlaw.com. Take care, Jason
Dear Jason,
Thank you for this writing about Section-13. I have read this so many times.
I have a question. My Section-13(i-485) was denied in 2016 and I sent an appeal immediately. The Appeal is still pending.
In the meantime, to obtain EAD as well as to report some new problem arose in my country, I have sent i-485 again and I got the received letter today.
What do you think about my old appeal? what they gonna do my old appeal?
Thank you?
Dear Tanvir,
please do you mind sharing the timeline for your 2016 application? I applied in 2015 but I have only have the EAD and no decision has been made on my application yet.
Thanks
Such appeals can take a while (over a year), but it is hard to predict. Since I wrote that posting, my opinion about section 13 cases has become more negative. It seems the government will basically deny any cases it can, even if this means stretching the law. In most cases, a person is better off filing for asylum, but I hope you will have some luck with your section 13 case. Take care, Jason
Hello Jason,
It seems ICE is capturing everybody who doesn’t have any legality here. My section 13 case is in appeal stage and I don’t have any valid work permit. My appeal is pending. and So my wife. We have a US born baby.
i. Shall I be arrested?
ii. what should I produce to ICE if arrested.
iii. If I work somewhere without valid work permit (through cash)…. and captured by ICE ….. what might happen?
Appreciate you answer please.
If all you have is an appeal from a Section 13 denial, I think you are in a weak position. You may be better off filing for asylum if you are eligible, as this offers more protection. While people are being arrested, it is only a few hundred out of millions here illegally, and many of those arrested are targeted because of criminal convictions, so unless you have a conviction, probably it is not likely that you will be targeted. If you are arrested, I suppose you can show a copy of your pending appeal, but I doubt this would stop ICE from detaining you. If you are caught (working or somewhere else), you will be detained and you will have to present any defenses (such as asylum) to an immigration judge. If you lose, the judge will order you deported, though you can appeal this decision. If you have a pending asylum case, I think it is less likely that ICE would detain you, in the unlikely event that they find you and arrest you. Take care, Jason
Appreciate your help. Thank you so much.
Hi Jason,
Sorry, I am asking so many question. But if you are so kind to answer… deeply appreciate that.
What about INFOPASS in NYC. I can take appointment. Can they have any power to approve my EAD under pending 290B? I want to send again the EAD application under 290B. First time they denied.
My opinion is that except in very rare cases, the I-290B is a waste of money and time for an EAD case. Normally, it is better to just re-file the I-765. If you plan to pursue the I-290B. I highly recommend you talk to a lawyer about the specifics of your case. I do not see how an Info Pass would help you, but it won’t hurt either. Maybe rather than spend your money on the I-290B, you can do the InfoPass and see what they advise you (though remember that there is a limited period of time to file the I-290B – check the form). Take care, Jason
Thank you so much. Good idea.
Here is the situation.
a. my I -485 under Section-13 was denied.
b. we appealed (290B)
c. They denied my EAD while pending 290B. They said EAD is only for pending I-485. it is true. USCIS.gov clearly said that. ( My present lawyer doesn’t know that)
d. I lost my job four months back…. and don’t know what to do. I have a family here. Now the situation is getting worst. Nobody wants to hire me without EAD.
e. Another lawyer said to send – I -485 again along with EAD application and you will get EAD within 3 months. I am ready to send that but my present lawyer don’t agree on that .
please help me what can I do.
I suppose you can send a new I-485, but maybe you are better off applying for asylum (you can file asylum and a new I-485). Normally, anyone with a Section 13 case also has an asylum case. Talk to the lawyer about what is best for you. Take care, Jason
thank you very much.
Hello Jason,
One important rumor that has spread out recently- President might stop immigration benefit (EAD, Travel Authorization, etc) to discourage undocumented immigrants.
1. Can he do that without congress?
2. Technically is it possible ?
3. If so… the Section -13 and Asylum cases will be without any benefit… right?
Thank you.
1 – At least for asylum-pending EADs, he can stop it. Though I suppose it could be challenged in court, at least in my reading of the law, he has the power to stop issuing EADs for people with asylum pending. 2 – See 1. 3 – Section 13 is not asylum. It is a very rarely given benefit for former diplomats. I do not know that Section 13 will be affected by anything the president does, as there are so few people who get it, that I doubt anyone is paying attention to that program. Take care, Jason
Thank you so much.
Hi Jason,
I read all Q/A. My i-485 application was denied under Section-13 and now my appeal (290B) is pending. we are sure by now there will be no work permit under 290B. I have 2 questions:
1. A lawyer said to send again i-485 application to get EAD… how much this would be logical. if so what will happen to my current application?
2. can a Asylum case and Section-13 case run simultaneously? because I dont see any future of this Section-13 case…..
appreciate your reply please.
Section 13 is very difficult to get, and the USCIS has been denying cases that really should be granted (at least in my opinion). I think Section 13 is basically a waste of money. If you have an asylum claim, maybe that is your best bet. I am not sure whether you can get an EAD while the 290B is pending. It might actually be possible and it would be cheaper than filing a new I-485, since you already paid the appeal fee. Maybe your lawyer can look into that. Otherwise, I suppose you can file a new I-485 to get the EAD. There should be no problem for Section 13 and asylum to run at the same time, as long as there are no inconsistencies between the two cases. Take care, Jason
lOVE YOUR REPLY AND THANK YOU. I AGREE WHAT YOU SAID.
As to the last bullet you mentioned above (“national interest”), today’s USCIS website reads: “admission […] would not be contrary to the national welfare, safety, or security of the United States”.
Is there a difference of interpretation between this negative tense (“would not be contrary to”) and the positive tense (“would be in the national interest”)?
These are requirements for two different things – the first is for the Section 13 adjustment to green card; the second is an executive order (I believe not yet signed) related to granting immigration benefits, which I suppose could include Section 13, but since the EO is vague, we will not know until it is implemented. Take care, Jason
my i-290b has been transferred to another uscis office, i-290b was for denied i-485 under section 13, reason for denial was “compelling readon” for not returning back to home country.
Now i sens new evidences that My immediate family member is at death risk due to poor medical facility of cancer treatment,
other reason is that my home country government fired me of my services.
is there any chances for approvel or not?
I have only done to Section 13 cases, but my opinion is that the government is trying very hard to deny such cases, to the point where they are distorting the law in order to deny. So I am doubtful that you will have success with the I-290b. If you do lose, you might consider taking the case to federal court. Such a court could force the government to follow the law properly, and maybe you would have a chance there. Talk to a lawyer before you do that, so he or she can evaluate your case. Take care, Jason
Thanks for this useful information. I have four questions:
1. How section 13 process takes?
2. In my last enter to US, I entered with my visa G-2, but five days before I resigned my diplomatic position. This can be a problem?
3. While the section 13 is been processing I have the right to live in US?
4. How it take to approve my authorization for work?
Since I have written this post, I have learned more about Section 13. Basically, it is very difficult to get it, even if you qualify they try to deny it. To answer your questions: 1 – I do not remember, but it is at least 6 months; 2 – This may be a problem; you will have to check the language of the law closely. If USCIS has any excuse to deny this case, it will; 3 – yes, and you can apply for a work permit while the case is pending (you apply for Section 13 using form I-485; at the same time and for no extra cost, you can apply for the EAD using form I-765); 4 – It probably takes 3 or 4 months to get the work permit. Take care, Jason
my i-485 under section13 denied,
now going to appeal, can i apply for i-765 and i-131 with i-290B,
reason for denial is “compelling reason” and “national interest”
what could be possible “compelling reasons” and “national interest”
The section 13 cases are almost always denied, and I suspect your case will be denied on appeal. You should be prepared to eventually take the case to a federal court. In any case, for an appeal, you are much better off with a lawyer who can look at the law and make a legal argument. Take care, Jason
Thanks a lot for the kind information. I have a diplomatic passport and run away to the USA from one of the neighbor countries. I entered here with a tourist visa. If I go back to my home country most probably I would be tortured maybe killed because of the political reasons. Should I follow Section 13 even though my visa is not A1. Thanks
You may be eligible for Section 13, but I highly recommend you meet with a lawyer before you do that. Section 13 is basically a fraud, and it is nearly impossible to get your green card that way (even if you do qualify). Probably your better choice is to file for asylum. Of course, you can both. Section 13 is somewhat expensive, but if money is not an issue, I suppose you can try (but still, talk to a lawyer first). Take care, Jason
Hello and thanks for all this information. Now my question is, what does being admissible mean in this section 13? Also, what does failing to maintain your visa status mean? Am on an A2 visa and I do have compelling reasons not to return home after I was sent here on diplomatic grounds (political) and would like to apply for a green card under section 13. And if they deny, am I allowed to appeal? If not, can I use the longer process of seeking asylum. Thanks
Having done a few Section 13 cases, my opinion is that the program is a sham. Unless your home government was overthrown and you now face persecution by the new regime, USCIS will most likely deny the application – even if there are “compelling reasons” for not wanting to go back. If your case is denied, you can appeal, but unless you are prepared to appeal to the federal courts, it is probably not worth the money or frustration to apply under Section 13. Even though asylum is slower, it is much more likely to succeed, assuming you meet the requirements. Of course, you can also do both Section 13 and asylum, which gives you two chances to obtain status (though again, my opinion is that Section 13 is basically a waste of time). As to your other questions, they are too complicated to answer in a forum like this and there are too many variables. You should talk to a lawyer about the specifics of your case and then you can make an informed decision about the best path(s) for you. Take care, Jason
Once a person has applied for a green card under Section 13… can that person travel to their country of origin (aka the country that accredited them as a diplomat)?
If Section 13 cases are overseen like asylum cases, then USCIS would frown upon (at best) the applicant traveling back to their country of origin… or, at worst, proceed to investigate the legitimacy of the applicant’s claim for asylum or Section 13 claims… correct?
USCIS is very strict with Section 13 cases, and they are very hard to win. I do not know exactly how they investigate such cases and I do not know whether you could travel back to your country if you are granted a Section 13 green card. You would probably want to hire a lawyer to research that before you travel. Take care, Jason
What are some of the work/jobs you will consider as in the National interest of the United State, Im a RN, is health care consider national interest of United State.
Maybe – but there is really not much guidance on this point. Section 13 is very difficult to get, and the national interest part is probably the least problematic part of the application. I think you can argue that nursing is in the national interest, especially if your job is for a place that also does medical research. Take care, Jason
Applied under Section 13 and recently had my i-485 denied. What would be the best line of action to take? Does that mean the EAD issued to me and my husband whilst my i-485 was pending is also null and void? Can i appeal the decision to deny my application? Please need your advise?
I am not sure how an appeal from Section 13 works. You should probably talk to a lawyer who could do some research for you. Since Section 13 cases are so uncommon, not many lawyer will know about this off the top of their head.
Do you know how long it takes to get a green card under section 13 once you have been to the interview…I already have my EAD and advance parole. You mentioned “immediately”…what is “immediately”? What is the usual process?
I don’t know the processing time. Cases involving diplomats are slower in general. My guess is it would be easily 6 months or a year. You can always call USCIS to see whether they can give an estimation of the processing time, but I doubt it, as each case will be unique. Best of luck, Jason
what if your were here in U.S under the diplomatic status and you were able to work, and this year your parents are no longer working at the embassy. Could you just have your work permit renewed instead of going through the assylum?
Hi there,
I understand this is not the right place for queries and that you need not reply to this.
I’m currently on a EAD that I received due to my father being a diplomat for Bangladesh embassy. This EAD was granted because my father used to work in a Bangladesh embassy decided not to return to Bangladesh and thus applied for Section 13 under the ruling that diplomats of foreign countries working in the USA can stay in USA and apply for permanent residency status adjustment under Section 13 ruling. Prior to that my father was on an A1 visa and so I was a dependent of an A1 visa holder.
All my family members are citizens of Bangladesh and we are on EADs that renew every year and we file form I-765. Initially the forms filled for adjustment of status were I-485, I-765, G-325A, I-508, I-566 etc
Now coming to the question. I’m planning to get married to a woman back in Bangladesh but I want to bring her here with me instead of myself going to Bangladesh. What are the possible options I have on hand? How can I bring her here to USA legally?
I think one option I have is to have her on a F1 Student visa.
Second option I can think of is to apply for H1b visa and have her come to USA on H4 visa.
Are there any other options out there that I can utilize to bring my spouse to USA.
Regards
The options you mention might work. Also, a tourist visa. There are many others (journalist visa, extraordinary ability, performer, etc) depending on her situation. You might want to consult with a lawyer about it to brainstorm about all the options…
Nice article.
“Another advantage is that the person immediately obtains a green card; an asylee must wait for one year before applying for residency.”
What do you mean by the word immediately? Is it one year , two, three , ten years etc. Thanks
Great article. I have one questions. What happen with the EAD while the denial of a Section 13 is in process of appeal? Can I person continue working until he gets a final decision on the appeal?
Great article. I have one questions. What happen with the EAD while the denial of a Section 13 is in process? Can I person continue working until he gets a final decision on the appeal?
Hi Jason,
Very good points you mentioned in this article. I have one question.
If the section 13 applicant is denied because when he/she filed the application while still working for consulate/embassy. Can that person file under section 13 case again once he/she is no longer working for that consulate/embassy?
I don’t see why not – but the person would do well to consult with a lawyer to make sure…
Hello,
Thanks for this wonderful article, actually I have a question for you on this. I know dependents of diplomats also get and EAD (work permit) once the diplomat applies for section 13. However, can any dependent of the diplomat also get an H1B visa after they get their EAD from section 13? To simplify what Im questioning is, can I be allowed H1B visa from a sponsoring company after I have the EAD from section 13 which my dad has applied for?
Thanks for your comment. I really can’t give specific advice here, but you are welcome to contact me to discuss (JDzubow@DzubowLaw.com). In general, though, if you are still in status, you should be eligible to change status to an H1B. I would recommend that you speak to a lawyer about this, just to protect yourself. Take Care, Jason