Aside from winning asylum, probably the most common way that asylum applicants obtain a Green Card is through marriage to a U.S. citizen (I wrote about that here). But there are other ways, and I will discuss some of those today.
As a preliminary manner, we need to talk about two concepts: lawful status and unlawful presence.
A person has lawful status in the United States if she arrives with a visa (or a visa waiver), does not violate the terms of that visa (by, for example, working without authorization), and the period of authorized stay has not yet expired (you can check whether your status has expired here). Such a person is considered “in status.”
The second concept is called “unlawful presence.” If you remain in the United States after your authorized stay has ended, you are unlawfully present. Each day you remain in the U.S. after your status has expired, you accrue one day of unlawful presence. If you have more than 180 days of unlawful presence, and you leave the United States, you are barred from returning for three years. If you have one year or more of unlawful presence, and you leave the U.S., you are barred from returning for 10 years. In attorney-speak, this is known as the 3/10 year bar. It is important to note that this bar only goes into effect if you leave the country. If you remain in the U.S., the 3/10 year bar has no effect. If you are (or will be) subject to the bar, it is still possible to return to the United States, but you need a waiver, (or a provisional waiver), which can be difficult and expensive to obtain.
For people who entered the U.S. illegally, there are a whole set of other issues. In short, most such people will have to leave the U.S. to get their Green Cards, and this will likely be very difficult, since they may face various bars to returning. People in this situation may be eligible for a provisional waiver, or they may be able to obtain their Green Card under INA § 245(i) (discussed below). If this is you, talk to a lawyer about how to proceed, and make sure the lawyer maps out for you the whole process–how will you get from where you are now to a Green Card? Will you have to leave the U.S.? How will you return?
One last point, assuming you are “in status” and eligible to obtain your Green Card in the United States (called “adjusting status”), you normally must file the application (form I-485) before your lawful status expires. If you do that—even if your status expires while the I-485 is pending—you are eligible to adjust status. If you have to leave the U.S., you would certainly want to talk to a lawyer to be sure you are eligible to leave, get the Green Card, and return. I will discuss leaving the U.S. to get a Green Card in the final post of this series, so stay tuned.
With these preliminaries out of the way, let’s discuss some ways a person with a pending asylum case might obtain a Green Card.
Family Petition: Here is a list of family-based immigration categories (aside from immediate relative categories, which I previous discussed): (1) A Lawful Permanent Resident (“LPR”) can file for a spouse; (2) An LPR can file for a child who is under 21 and unmarried; (3) A U.S. citizen can file for an unmarried child who is over 21 years old; (4) A citizen can file for a child who is married; (5) A citizen can file for a sibling.
If you are in one of the above categories, your family member can file an I-130 petition for you. The different categories have different wait times, which you can see at the U.S. State Department Visa Bulletin. Also, certain countries—Mexico, China, India, and the Philippines—may have extra-long wait times, which you can also see on the Visa Bulletin. Once the date on the Visa Bulletin matches or passes the filing date for the form I-130 (called the “priority date”), you can apply for a Green Card. However, you might need to leave the United States in order to obtain the Green Card.
So how do you know whether you have to leave the U.S. to get your Green Card?
In order to get your Green Card based on one of the above categories without leaving the United States, you need to have entered the U.S. lawfully and still be “in status” (as discussed above). A pending asylum case is not considered “in status” for this purpose. Meaning, you need to have some other lawful status that has not yet expired (F-1 or H1b are two common possibilities). Given the long wait times for many of these categories, few people will be eligible to obtain their Green Cards without leaving the country.
There are exceptions to the general rule. The most common exception is under INA § 245(i). That section of the law states that a person who was physically present in the U.S. by December 20, 2000, and who was the beneficiary (or sometimes, the child of a beneficiary) of a family- or employment-based petition, or Labor Certification petition, filed by April 30, 2001, may be eligible to obtain a Green Card based on one of the above categories without leaving the U.S. If you think you might be eligible under INA § 245(i), talk to a lawyer to be sure. One other possible exception involves people with TPS, but such cases are often complex and you would need to talk to a lawyer about what to do. You can find some basic information about TPS and adjustment of status here.
Employer Petition: There are various types of employment-based petitions for a Green Card, called EB-1 through EB-5 (EB means “employment-based”). Some categories have a waiting period (and certain countries have extra-long waits); others do not. You can see all that here. Also, certain categories allow you to self-sponsor (EB-1, EB-2/National Interest Waiver, and EB-5). Other categories require an employer to sponsor you. Some categories allow for “premium processing,” which means you can expedite the case by paying an additional fee. In general, employment-based cases are complex, and you would probably want to use a lawyer to help you. USCIS has a good overview of the different employment-based categories and the requirements for each.
As with family-based petitions, unless you are “in status” (and a pending asylum case does not count), you would need to leave the U.S. to get your Green Card (this is where premium processing can sometimes come in handy) (also, there is a possible exception to this rule for certain employment-based categories where the period of the violation did not exceed 180 days, or where the period only exceeded 180 days due to a “technical violation” or through no fault of the alien – and potentially, this could include a person with a pending asylum case). Be aware that if you have unlawful presence, you could be barred from returning after you leave, per the 3/10 year bar (discussed above). Finally, employment-based immigrants may benefit from the same exceptions as family-based immigrants: INA §245(i) and perhaps TPS. In short, this can get very complicated, very quickly, so talk to a lawyer if you think you may be eligible to adjust status based on a job.
One word of caution for the EB categories. I have seen a number of instances where the alien hired (and paid) a lawyer to help with an employment-based Green Card, only to learn later that he (the alien) was ineligible to actually get the Green Card. The lawyer successfully completed the first step of the process (the petition or I-140), but the alien was ultimately ineligible to get the Green Card due to the 3/10 year bar, a prior removal order or for some other reason. The attorney knew or should have known this in advance—before the client started spending money on the case—but for whatever reason, did not inform the client. The short answer here: Make sure when you talk to a lawyer, you have her explain the entire process, whether you need to leave the U.S. to get your Green Card, and how you will do that and return. To be extra safe, I would have all this in writing.
Diversity Visa Lottery: If you win the Visa Lottery, and you are “in status,” you may be able to adjust status, as discussed above. If you are no longer “in status,” you would have to leave the U.S. to get your Green Card (unless you meet an exception, such as INA § 245(i), as discussed above). As always, be aware of the 3/10 year bar and any other bars to re-entry. Also, if you plan to leave the U.S. to collect your Green Card overseas, talk to a lawyer about the process, as the Lottery can be tricky, and you do not want to take get stuck outside the country.
Some Other Random Ideas: Aside from the more common ways to obtain a Green Card, there are some more obscure paths as well. Some of these might allow you to obtain a Green Card without leaving the U.S. If you think you might qualify for one of these visas, talk to a lawyer to evaluate your case. For a number of these visa, your best bet might be a non-profit organization, as many of these visas apply to particularly vulnerable people, who are often served by non-profits. A list of such organizations can be found here. Without further ado, here are a few of the lesser-well known paths to a Green Card:
– S Visa: The semi-mythical “snitch visa” for people who cooperate with the government in a criminal or terrorism investigation. I wrote about it here.
– T Visa: This visa may available to victims of “severe trafficking.” You can learn more here.
– U Visa: Victims of certain crimes who assist law enforcement may be eligible for a U visa. Learn more here.
– SIJ Visa: The Special Immigration Juvenile Visa may be available to minors who are abused, abandoned or neglected. If you are under 21 and you are not with a parent or guardian, you may qualify. More information is available here.
VAWA: Under the Violence Against Women Act, certain battered spouses, parents, and children are eligible to file for a Green Card (both men and women can qualify under VAWA). Learn more here.
In the final installment in this series, I will discuss leaving the United States to get your Green Card overseas.
I have a pending asylum and would like to know if I can apply for EB2-NIW.
I came to the USA with a B1/B2 visa, never violated my status, and applied for asylum.
I learned about EB2-NIW and would like to know if I can adjust my status using EB2-NIW.
My asylum case started 5 months ago.
You would have to have a lawyer look at the case to be sure, but if you filed for asylum before your B status ended, you should be eligible to adjust status based on a section of the law called INA 245(k). In looking for a lawyer, I would ask whether the lawyer has done such a case before and how it worked. Also, before you start, I would have the lawyer map out in writing how you will get from where you are now to having a GC, whether you will need to leave the US (and what to do if something goes wrong with the process when you leave), and where are the risks. Again, you would definitely want to have a lawyer look at the specifics of the case and make sure you can complete the whole process before you start (and before you start spending money on this). Take care, Jason
Guys, sorry it’s an old post but still wanted to be of some help. Don’t fall for any lawyer whom promises you EB AOS if you have a pending asylum for more than 6 months and no other status. I was robbed of a lot of money and my EB AOS was denied due to failure to maintain status as pending asylum is not considered status. We did appeal and lost even more money to the same lawyer and USCIS still did not buy the argument and the appeal was also denied. Wish someone had guided me properly.
I am sorry to hear this. There is a potential path under INA 245(k), but it does not always work. If you think the attorney ripped you off, maybe you want to contact the bar association for the lawyer’s state, as they may be able to assist (the bar association is a mandatory association that polices lawyer behavior; sometimes, they actually help people who were ripped off, but not always, as it depends on the state and on what happened). Take care, Jason
Hey JUSTICE
Are you saying if I apply for EB AOS within one year when I legally entered the USA, I still have a chance?
I applied for Asylum without violating my tourist visa status. After expiring six months of i94 status, USCIS gave me an exemption for the next six months.
That means if I adjust my status after one year, will it be rejected?
I think they are all still valid for 1 year. USCIS is trying to change this, but for some reason, the process is incredibly slow. Take care, Jason
Hi Jason,
I have a complicated case, My dad filed a i-130 petition for me when i was still in my home country in 2014. I came to the US in 2016 with a F1 visa. My dad became a US citizen in June 2017 and i got married in August 2017. I updated my new marital status with USCIS,( big ignorant mistake). My i-130 petition got approved in Feb 2020. However, i was unable to adjust my status or get a work authorization because, i have to wait for my case to become current in the visa bulletin. Also, i have been getting mails for NVC that my visa is ready at my home country. I understand i have to be in status in the US to benefit from the i-130 petition, my F1 OPT ended Feb 2023. I filed an Asylum petition the same month (Feb). I have a F-1 doctoral admission and i-20 for August semester. My fear is i do not know if i am still in status. What should be my response to NVC? Also, please what do you think are my options to GC moving forward? Thanks so much.
If you are still in valid F-1 status (meaning that you are still a full time student or in valid a OPT job), you should be able to adjust status once the visa application is current. The fact that you are married makes it slower, but if you had not reported that, it would ultimately have caused major issues, including potential deportation, so I do not think telling USCIS was a mistake at all. Anyway, you can Google “DOS visa bulletin” to see when the visa is current. Note that there are two charts – one for when the visa is current and one for when you can file the I-485. This can be tricky, and it would be a good idea to talk to a lawyer, especially if you think your F-1 status has ended. If that is the case, you can try consular processing, which is complicated by your asylum case, but which could still be possible. If you tried that, you would certainly want a lawyer to help. Take care, Jason
Hello Jason,
Currently, I’m an international student and attending full time classes while pending asylum case. I would like to know if I use EAD and SSN from pending asylum, am I out of status or In status.
Thank you.
There is a lot of debate about that issue and I do not think there is a clear answer. Potentially, the mere fact that you applied for asylum puts you out of status (since students are required to leave at the end of their studies, and filing asylum means you want to stay permanently). I have never had a case where USCIS found the student out of status for working on an asylum-pending EAD, but I think they could reach that conclusion. I suppose you can have a lawyer research this question, but when I have looked into this or communicated with other lawyers on my list serves, I have never found an answer. I do think if you plan to leave the US and return on the student visa, that could be a problem with a pending asylum case (whether you work or not). Maybe your question relates to later changing your status (to H1b, for example) and I have not heard about anyone being blocked from this, but again, I am not sure and that may be a risk. Take care, Jason
I was granted asylum April 2019, my son who at the time was 12 years old came to the USA on a visitors visa Kind of the same year, in July same year I petitioned (I730) for him, I received an appointment for finger prints for him, since then I haven’t heard from Uscis in regards to my son, can I apply for social security for him or is he still in status or is he out of status. I don’t know what to do
Unfortunately, the I-730 process is very slow and USCIS does not offer an EAD while you are waiting. Once he gets an EAD, he can also get the SSN. That said, most I-730 cases seem to be done in 2 or 3 years, and so I think your case is moving very slowly. You might try calling USCIS to inquire about the long wait: 800-375-5283. You can also make an online request – follow the link under Resources called USCIS Help. If those ideas do not work, you can inquire through the USCIS Ombudsman Office – there is also a link under Resources. That office sometimes helps with delayed cases, but you are supposed to try the other options first. Take care, Jason
Hi Jason – I have a pending asylum since 2017, I filed in Pennsylvania but currently live in Tucson AZ. The Company I worked for filed a Labor Certification and I-140, both were approved. The lawyers advised to go through Consular Processing in Colombia (I’m from Venezuela) over applying for AOS, but I know that could take several years due to Covid delays. I learnt that a person with similar case that she was successfully able to file for AOS and asked the lawyers about it. In their response they said the following:
The argument that we would make is as follows: There is a parenthetical exception in the statute that if the failure to maintain lawful status was due to “procedural or technical reasons” then the adjudicator can still consider the adjustment application (see the attached statute § 245(c)(2)). I have checked around and have found one lawyer in the Washington DC-area who tried this successfully, although I have heard from several others that their cases were denied. I don’t know how likely we are to be successful in this argument before the Tucson USCIS.
Now for the final caveat. If we try for the adjustment now and it is granted, that is not necessarily the end of the matter. Five years subsequently you will be eligible for U.S. citizenship, and at that time the government will review whether your green card was properly approved. A lawful green card approval is required for citizenship eligibility. If the officer on your future citizenship case determines that your adjustment of status was incorrectly approved, you can be denied citizenship at that point, and even placed in removal proceedings.
What would be your advice on this case? Thank you so much!
I do not do employment based immigration, and it sounds like this attorney knows much more than me. I think the language he is referencing is from INA 245(k), but you might look at that section as well. It sound like the lawyer is explaining the options and the risks, so you can make the best decision for yourself. Take care, Jason
Hi Jason – I have a pending asylum since 2018. After I applied for asylum, I applied for NIW I-140. The NIW-140 was transferred to the houston asylum office and was stuck there for almost two years. My lawyer had to ask ombudsman to get the I-140 moved back to the USCIS Texas service center. Ombudsman request was successful and my I-140 was transferred to the TSC for adjudication. My I-140 got approved May 2021. I then filed for AOS 485 in July 2021. This morning I learned that my 485 was transferred to Houston asylum office in September 14, 2022. My question is (1)why the 485 got transferred to the asylum office while the asylum office doesn’t have the ability to adjudicate the 485. (2) what the asylum office is doing with my 485 (3) Will this delay my 485 approval? If so, how long? (4)What do I need to do to move the 485 back to the USCIS for adjudication? (5) will it be helpful to withdraw my asylum so the 485 process can move forward? (6) if I withdraw, will the asylum office release my 485 to the USCIS. I need help what to do so my AOS 485 will be approved soon. Thank you.
1 – I do not know, but it may have to do with the fact (at least I think it is a fact) that there is only one file, and they need info from the asylum case to adjudicate the I-140. It may also relate to the fact (a definite fact) that the TSC is a disaster and they often screw things up. 2 – I do not know, but maybe you want to email them to ask about this and ask whether this is standard procedure. You can find their email if you follow the link under Resources called Asylum Office Locator. 3 – Possibly, but I do not know. 4 – I think you should email the asylum office to ask. It may be that this is the proper procedure and you just have to wait for the asylum office to do whatever they do (I suspect that they should send your file to USCIS, but I am not sure). 5 – I would only do that as a last resort in case the I-485 is not approved. Also, if you are processing the I-485 based on INA 245(k), withdrawing the asylum might affect that, though I am not sure. 6 – I do not know, and withdrawing is not always an option. It could cause them to send your case to immigration court, which might make the situation worse. It sounds like you have a lawyer who has been effective so far, and so hopefully they lawyer can communicate with the aslum office to try to move the case along. Take care, Jason
I am very interested in this topic. if you care to update us with what happens with you in the future please do.
this might help many others, me included. good luck!!
Hello Jason!
I filed my asylum in 2015. Got married in 2016. My wife had a F1 status from 2015 to 2020. I only was able to add her to my asylum case after she overstayed her F1. I know that I won’t be able to adjust since my status expired when I filed for asylum. But how will the AOS from employment for example work for her? Because technically my asylum is pending since 2015 and she was in status that time. Does it work like that or do they count the date when she was added (Which is 2022)?
I will appreciate your help.
I do not know about this, as I do not do employment-based immigration. Assuming she is eligible, she may need to process the GC overseas, but maybe she could do that under INA 245(k) as discussed in the above article. I think you need to find a lawyer who does such cases and have the lawyer map out exactly how she will get the GC, whether she needs to leave the US, and where are the risks. I would get this all in writing, as that would protect her from a lawyer who might be inclined to promise more than he can deliver. Take care, Jason
Hi Jason, thanks for this useful blog. I am in the US on H1B for past 15 years and my employer had filed for PERM/i-140 in the year 2011. I did not go to my home country ever since 2015 and have been living and working on H1B in the US. In 2016 I had applied for asylum for some personal issues but that was denied in 2018 by the asylum officer as he was not convinced. I had also applied asylum EAD though I never used it. . In 2021, my employer filed for i-485 while I was still on H1B. Come year 2022, I have been asked to appear for an interview for Employment based AOS. Question is whether past asylum denial can really cause employment based AOS to be denied or if I meet the merits of EB AOS then past asylum denial will not be that much of an issue. I am thoroughly confused. I understand that there is no sure answer but in your experience on these matters what will be your take ?
I do not do EB cases, and so you would probably do better to talk to an employment immigration lawyer. However, I see no reason why an asylum denial would affect an I-485, unless there are inconsistencies between the I-485 (or other forms/documents) and the asylum case, or if the US government concluded that the asylum case was fake. Otherwise, I do not see why you would have an issue. However, if you have a lawyer for this, you should certainly share all the info about the asylum case so the lawyer can look at it to determine whether there might be any issues. Take care, Jason
Hi, I have a pending asylum status and my then 20 year old son was my dependent. I got married to a US citizen and have applied to adjust status. My son is 25 now. What are his options when I get my green card? Will he have to do a fresh asylum application? Will his EAD be revoked? We would appreciate your answers. Thank you.
Even if you get the GC, you can continue your asylum case so he can remain as a dependent (and keep his EAD). USCIS may ask whether you want to close the asylum case, but you can choose to keep it open (this will not work if you become a US citizen). If your asylum case is closed, he will lose his GC and he would have to find some other way to remain in the US. One option would be to file his own asylum case, which he should do before your case ends or within a few weeks of your case ending (in order to protect himself from the one-year filing bar). I discuss this issue in a post from January 26, 2022 – maybe that would be helpful. Take care, Jason
Thank you very much for your prompt response. I’ll read it.
Hello Jason,
My asylum application has been pending without getting any interview schedule or adjudication for 7 years since 2015. I initially came to the US with a student visa. I had been working on CPT work authorization while I was on F1, and got sponsorship for H1B in late 2017. I have also worked in asylum applicant EAD for about 6 months or so. Finally last year, in 2021, my EB2 and AOS applications got approved and I could able to get my Green Card.
Some months later, I expressed my desire to administratively withdraw my asylum application via email to the asylum office. They asked me to fill out certain forms which I did and responded back right away. Since then, I haven’t heard back from the office except for the final email they send me 7 months ago saying that they are processing my request and they will send me a mail notification when it’s completed.
Recently, I am planning to travel abroad for a family emergency and even though I already have a GC, I have been worried to leave the country without properly withdrawing my asylum application. Do you think it will be a problem for GC holders to travel abroad still having a pending asylum application? What kind of question may I expect to get from the immigration officers when I get back to the US from my trip?
Thanks so much, Jason for your opinion and help on this.
You should email the asylum office again to follow up. You can find their email if you follow the link under Resources called Asylum Office Locator. Unless you travel to your home country, the only issue to worry about is that you have to use a passport from a government that wants to persecute you (obviously, this is less of a problem if you fear non-state actors). You should be prepared to explain that if asked. If you plan to go to your home country, I did a post about that which would likely apply to you too – that was on January 6, 2016. Take care, Jason
Thanks a lot Jason, I really appreciate it. I will follow up with the asylum office if they may respond to my email.
I will be returning back to my home country using same government passport. fortunately the political groups that I escaped persecution from are no longer in government power after ruling the country for 30 years. That gives me a little bit of confidence to return back for a few weeks. By the way, do I need any documentation’s like Adv. parol or so, other than my GC and passport, for an international travel at this stage?
If the trip is less than 6 months, you should only need the passport and GC. You should be prepared to explain why you returned and how you stayed safe, but it sounds like you have a good explanation – the party that wanted to harm you is no longer in power. Take care, Jason
Thank you so much, Jason. I will take your advice. This is so helpful.
Hi Devral, I have a very similar case. My asylum application is pending since 2015. Also, my employer applied for my GC and just submitted I485, I765 and I131 petitions. My question is about AOS (Adjustment Of Status); some lawyers say it’s a gray area and I might not be able to get the GC through work because as a pending asylum applicant I’m out of status….so technically Adjustment Of Status will be rejected. I really appreciate if you share how did you go through AOS with a pending asylum case?
I did two posts about this issue in August and September 2018 – maybe those would be of interest. Take care, Jason
Hi Jason!
Apologize for leaving post in “old” thread, but hope you will read and react on it.
4 years ago, I asked about “consulate” shopping and possible bar(s) for inadmissibility, even visa is approved. Thanks for sharing thoughts on that! In turn, As I promised, I’m sharing with you update (that’s why I hope you read this post).
We refused idea of H1B consulate, too risky, i-131 approve timing & visa scheduling – hard to manage, plus great chance to hang in third country.
Instead we chosen EB & AOS. In worst case, i-485/AOS could be rejected and could keep “pending asylum” status and waiting for interview. Crucial part of this approach is not to be interviewed by USCIS and you properly explained that in article!
So, recently our i-485s were approved and we’ve got green cards.We’ve being waited for interview 6 years and, yeah, this fault is completely fault of USCIS.
Beside that, Jason let me ask you this: how do we properly inform USCIS about desire to withdrawal or close asylum case ?
Thank you in advance.
Congratulations on the GCs! You can email the asylum office and tell them you want to withdraw. Sometimes, they send you a form. You can also send them a copy of the GCs front and back. You can find their email if you follow the link under Resources called Asylum Office Locator. Take care, Jason
Hi Jason!
Seems freeform of withdrawal email is 👌
Will do.
PS Thanks you for all awesome work you are doing there! This resource one of the most useful in internet.
He Constantine,
Do you mind sending me an email at torilaurehawa [at]gmail.com. I am in a similar situation and it would mean soo much to me. If possible, would love to get in touch with your lawyer as well.
Hey!
I explained pretty much everything I can share within community! Honestly, there are no hidden gems, which could be share privately.
Yeah, one things to note – we did not have dedicated lawyer to this process. Your best lawyer is you and luck. Because of EB process, corporate lawyers just followed regular GC process, according to company practice.
Congrats! Please share your EB experience if you can, did you have to leave US and go to third country? Or how Aos worked?
I am on the same boat pending asylum 7 years
Hi! And congrats on your green card. could you please explain the strategy used for your AOS EB case? If you can, could you kindly share your EB experience? Did you have to leave US and go to third country? Or how AOS worked? What arguments were used?
Nakia, Memo,
Thanks!
It was complex case
We arrived at work visa and filled asylum after 1 year and 5days since arrival date. Technically this is violation, but we had strong reason (fraud from lawyer’s side). But my i-94 was valid for 3 years, So from i-485 adjudicator prospective, we never fall out from status.
My eb case is straight, i found good employer and in 2020 we started eb-2 process. I-485 for adj of status was approved without RFE. As for I-485, we filled it as it is, without proofs or any evidences, explanations etc. we only indicated current status as pending asylum. For sure we was prepared for upcoming rfe, bit it did not happen.
So we never left US since arriving on visa. Also we never had interview for asylum or green card, as well as we never lied in any form.
Hope it helps
hello! did you receive an EB green card while waiting for an asylum interview in the US? please tell me how did you do it? it is not clear what it means not to be interviewed at USCIS. Thank you
Hello Jason,
Do you think that the I589 can be considered as an immigrant visa petition?
Also, is the person who applied and waiting for his asylum interview is considered to be in removal proceedings?
Thanks in advance!
A petition is filed by a US citizen, resident or a company to sponsor another person for the GC, so the I-589 is not a petition (sometimes you can petition for yourself, but that is different from the I-589). Unless you have a case in Immigration Court, you are not in removal proceedings. Take care, Jason
If I read your article the right way as long as I applied for assylum before my visa expired I should able to get my dv adjustment .
But I just got denied on the 27 saying I am unlawful even if I applied 2 months before expiration . I even heard about the law 212a 9b I need help to appeal how to contact you
My phone
I took down your phone number, as it is not a great idea to post that on a public forum. The exception you are talking about is INA 245(k), and as far as I know, it only applies to employment-based cases. It does not work for the DV lottery. I do not do DV cases, so I do not know much about that, but I think if you are trying to use INA 245(k), it would not work in that situation. I do not know about the law you are mentioning. Take care, Jason
Hi Jason,
I travelled outside the U.S with a travel document exactly nine months after my asylum was approved. I was outside the country for 30 days and now I am back in the U.S. Does the 1 year physical presence requirement ask for “Continuous” presence or can I add up the missed time before applying for adjustment of status.
Or does the 1 year physical presence clock resets? Please advise.
It is total time – so if you were outside the US for 30 days, you should wait 1 year + 30 days before filing for the GC. Take care, Jason
Jason, Thanks for your resources. I have EB based special immigrant visa approval and removal proceeding appointment for hearing. I have applied to asylum on time before visa expiry. Is there any way I can adjust without leaving? I don’t have close family.
Thanks
My instinct is that this is unlikely, but if you think there is a chance (maybe per INA 245(k) as mentioned in the above article), you can talk to a lawyer about it to see whether it can be done. Take care, Jason
Hello JIMI,
Have you had your visa approval and removal proceeding appointment for hearing as of yet ?
Will appreciate if you keep us posted on that.
Hi Jason,
Thank you for all of your effort in this community. I am a Ph.D. student under f1 visa. my wife applied for asylum and I am on her file as a dependent . She is working with her asylum EAD. I have the asylum EAD as well but have not used it. I just worked on campus 20 hrs as a research assistant and worked off-campus on CPT during summer. I am interested to apply for NIW EB2 since the lawyer guarantees me for approval/refund. I was wondering whether I can do it since a person told me I violated the f1 visa when I applied for EAD even I have not used it and even I cannot apply for OPT. I am very sad since I did not know that having asylum ead and even I have not used it deprive me of OPT and EB2. Could you explain to me if this fact is true or is just an interpretation of the rule?
Thank you,
This is a situation where the law is not clear. It seems to me (based on a USCIS memo from September 2018 – if I remember correctly) that a student is considered in-status, even if he has an asylum case, but that if asylum is denied, he may be found to be out of status and referred to court (meaning that you would be eligible for a GC based on EB-2, assuming you otherwise qualify and have not violated your student status in some other way). However, USCIS could interpret the fact that you are an asylum applicant (even a dependent) as evidence that you violated your student status by requesting to remain permanently in the US (which is in conflict with an F-1 visa, where you promise to leave at the end of your studies). If they interpreted the asylum in that way, they may determine that you are out of status and ineligible to get a GC. I have not heard about that happening, but I think there is some risk. In short, my guess is that you can apply for the GC, but that there is some risk of denial based on your status. Since the process is expensive, you may want to have a lawyer research it, and see whether there is a more definite answer. As for your lawyer, I have a major concern about any lawyer who “guarantees” success or promises a refund if the case is not approved – in most (or maybe all) jurisdictions, such a promise violates the ethical rules that lawyers must follow. This makes me lose trust in anything else the lawyer may say. You may want to get a second opinion from a different lawyer. Take care, Jason
I have the same situation like you Jack. my email is sahbalka@ gmail… can we have a contact and share want we learned?
Hello Jason,
I currently have pending asylum, my F1 visa has expired for more than 180 days. The wait has been agonizing for the asylum case (almost 4 years now!). An employer is willing to sponsor me for eb3.
Is filing EB3 possible while I am in the US or do I have to leave the country?
Do I have to withdraw my asylum case or EB3 can be filed while I have a pending asylum case?
Can I still renew my EAD through pending asylum case while EB3 is ongoing?
Thank you in advance!!!!
Most people in this situation would need to leave the US, but there are exceptions (as discussed above). Talk to a lawyer about the specifics of your case to be sure. You do not have to withdraw the asylum case to do the EB3. You can renew the EAD while the EB3 is pending. Before you start the process, have the lawyer write down for you, step by step, how you will get from where you are today to your green card. I have seen many people get ripped off in this situation – the lawyer will do the first step of the process (and charge you money) even though the lawyer knows you cannot complete the process. If the lawyer writes down each step, it is much less likely that you will get ripped off. Take care, Jason
Hi ma, I am in the same situation as you. Can we talk through email or text message? My email is lie1_sky@yahoo.com
Hi Jason, I want to know if the medical examination for adjustment of status for Asylee is compulsory, I was granted asylum last year. I also want to know what happens if someone test positive to syphilis or Tb during the medical examination. Thank you Jason
I think it is required for almost everyone who applies for a GC. I am not sure what happens if you test positive, but if I remember, I think you need to get treatment and present evidence of that; I do not think you are block. But I have not done that before or even looked at it in a while, and so I am not sure. If you do the exam, you might ask the doctor about these questions, as the doctor should know. Take care, Jason
Hi Jason, Two questions please:
– if I have pending asylum case with approved I-140 (EB2) why there is a need to travel outside the US for adjustment of status and what are the procedures that need to be done outside, do you know?, will I be coming with a GC or I still have to come back to the US to obtain the GC.
– if I will have travel to a third country for the point mentioned above, Can I use the Advanced Parole document to come back to the US as its considered ‘No Departure’ since I have application(s) opened here in the US
Appreciate your contentious support
1 – Most people have to leave because they are out of status (and the pending asylum case is not considered “in status”). In general, you cannot change from out-of-status to in-status without leaving the US. There are exceptions to all this, and so you need to talk to a lawyer about the specifics of your case. If you leave and process the GC overseas, you will return to the US with a sealed envelope. When you reach the US you will go to a separate office at the airport, where they will review the paperwork, and when you leave the airport, you should be a lawful permanent resident. The GC itself will come in the mail later. 2 – I recommend you try to get AP (which is not always easy), so that if the consular processing for the GC fails, you can still return based on AP. It can be difficult to coordinate the timing of the embassy interview and the AP, but you can try. Take care, Jason
I appreciate your prompt response. Just one follow up question: when I come in with the sealed envelope from the consular, isn’t that considered a permanent resident and its just a matter of paper work to get the GC in the mail?
Hello “Memo” and all,
Could you please keep us informed on the results of your actions. I would appreciate any input of yours.
By the way, on your I-140 you have to specify the country where the consular proceeding is going to happen. Did you choose to get a visa from a 3rd country?
Best regards,
Marat
Hello “Memo”,
Following links might be helpful:
1. https://www.uscis.gov/system/files_force/files/form/i-131.pdf?download=1
specifically parts 3,4,6
2. https://www.uscis.gov/system/files_force/files/form/i-140.pdf?download=1
specifically parts 4
If you will be able to check which country is on your I-140 and what are you going to put on your I-131, that might help to assessing your chances by yourself.
That is correct. Once you are “in”, you are fine, but you may be barred from returning to the US, so you have to be careful about that. Take care, Jason
Hey Jason! have my asylum case pending since 2014 and also have TPS. Never been unlawfully present in the states. I recently had my I -140 and I 175 approved via EB3. For now, my I 485 is pending and just got an update that “my case was transferred and a new office has jurisdiction.” What does it mean? My company lawyer says I can have multiple petitions pending before going to an interview, which I am not quiet convinced just because I had asylum filed. Will having a pending asylum can have any negative effects on chances of being approved for AOS? I am not even sure if withdrawing the pending case is going to do any justice or not? Can I withdraw my case later incase they approve my AOS?
Thank you
I normally recommend that people do not withdraw the asylum case unless USCIS requests that, and I doubt withdrawing the asylum case will make much difference. Also, it is normal for cases to be transferred around, so I do not think that notice is an issue. However, if the case goes beyond the processing time, you (or better, your lawyer) may want to contact the asylum office to ask if anything needs to be done on their end. Take care, Jason
Thank you for the information.
Do you think the interview officer ask abut any pending cases when one goes to interview based on other petition?
Thank you again
They could, especially if that case is somehow inconsistent with the asylum case. You should assume that any case that is filed with USCIS (or any part of the US government) will be available to the interviewing officer. Take care, Jason
Hi Jason! after all those nerve wracking waiting time, my AOS is finally approved. Can I now withdraw my pending case? I am now again stressing if there’d be any negative consequences for instance travelling back to my home country. How long does it take for the asylum office to approve the request? Also, Can i do it in person for quicker proceeding ?
Again, Thank you for all your information Nd everything you do.
Email the asylum office and ask about withdrawing. You can find their email if you follow the link at right called Asylum Office Locator. Some offices have a form you need to fill to withdraw. You can also send them a copy of your green card (front and back) and ask to withdraw. I do not think there are negative consequences, but you do need to be careful about returning to the home country – you do not want them to think your original asylum application was a fraud. I wrote about returning home on January 6, 2016. Take care, Jason
@Trulyarie, did you have to travel outside, did it work for you? am in a similar position now
Hey! Memo! I haven’t been there yet. My interview is scheduled for August. I have no clue what to expect. Too many doubts here. Any updates on yours?
Best of luck on the interview! Please keep us posted!
Congratulations!
Did you have to go outside for adjustment of status? If not how did you get that waived?
Also is the approved AOS is for your EB3? Or something else?
Thanks
I’ve asked a lawyer if it is possible to adjust a status while asylum interview pending based on an exception from INA 245(c)(2) – Technical violation resulting from inaction of USCIS, and he said that there were no precedents and if the I-485 got denied it will trigger NTA based on https://www.uscis.gov/legal-resources/notice-appear-policy-memorandum . However on the memo I’ve found following:
“USCIS will not implement the June 28, 2018, NTA Policy Memo with respect to employment-based petitions at this time. Existing guidance for these case types will remain in effect.”
He still insists that USCIS is inconsistent and would not recommend to proceed due to the high risk.
My company is ready to file I-140, but I definitely don’t want to leave the borders of US.
Would like to know your opinion….
I don’t do employment cases (except EB1 and EB2/NIW), so I don’t know. I tend to think leaving the US is not safe, and I am also suspicious of lawyers who encourage people to do the PERM and the I-140 when there is not a clear path to complete the green card processing. Given that I have no experience with the exception, I don’t have confidence in that and I would not do that for a client. I would love to hear about someone who successfully did it, but so far, I have not heard of such a case. Take care, Jason
Thanks Jason,
Is there a way to find any similar case (precedent), where a person in pending application status, filed form I-485 based on I-140 (EB-2 or EB-3) and exception from INA 245(c)(2) – Technical violation resulting from inaction of USCIS ?
I guess from ~700K asylum applicants someone should have already tried….
I would imagine that some people have tried it, but I have not, and I know of no published case on point. It would be nice to have more information about that. Maybe there is an unpublished decision about it somewhere (from the BIA or more likely, the AAO). One organization that collects unpublished decisions is http://www.irac.net. Maybe you can contact them for help. Take care, Jason
Hello Jason,
Are you going to attend the “Asylum Division Quarterly Stakeholder Meeting” which will be held in Washington, DC ?
https://www.uscis.gov/outreach/asylum-division-quarterly-stakeholder-meeting-10
Is it tactfully to ask them, if there is anything will be done by them to allow people apply for a green card through DV-lottery or employer sponsorship ?!
I hope to attend, but we shall see. They do not know about the lottery or employment sponsorship, so there is no point to asking about this. That is another part of USCIS. Take care, Jason
From the policy, you will be sent NTA if you withdraw your asylum case. Wait till you see if are granted adjustment of status before withdrawing your asylum case.
Thanks Larry,
The first immigration attorney, whom I’ve paid for the consultation, end-up saying Halloween-y things such as:
there is a “way” to know, if USCIS is going to NTA and they have been inconsistent in the implementation of the memo
The second immigration attorney, said another Halloween-y story such as:
– You can’t apply for I-485, you may apply for DS-260 from a third country, which is actually a high risk of being denied at the consular interview. She also mentioned the case, where an officer, at the border control informed a DV-lottery winner and at the same time asylum (pending) applicant that he is banned for 10 years to enter the US, even though there is a bona fide for unlawful “presence”. You wont be able to appeal this decision if you are not in US, she concluded…
Too much spooky, scary stories instead of real laws and regulations ….
It is a real problem that there is not a lot of guidance on many of these issues, and so it is sometimes about weighing the risks without having a real answer. It’s one of the many joys of the US immigration system. Take care, Jason
I have pending asylum application for more than 2 years now. Have I 140 approved but cannot file adjustment because of unlawful presence. Just want to know is their any way to get adjustment based on i140 without leaving us. Leaving us means 10 years bar.
You may be able to apply for a waiver of the 10 year bar (using form I-601), but unless you are eligible for INA 245(i), I know of no way to get the GC without leaving the US, and in practical terms, that usually does not work. If an attorney helped you with the I-140, you might ask that attorney why you filled that form if there was no way to get a GC at the end of the process. Did the attorney make you aware of that when you hired him/her? Maybe the attorney has some explanation for you. If not, I would ask for a refund of any money you paid and perhaps file a bar complaint if that is appropriate (I will post something about bar complaints later today). Take care, Jason
Thanks Jason. I appreciate!
Thanks Jason for the good work… I have an approved i140 eb2 niw. For the employment based comment you made in the blog you said this:
(also, there is a possible exception to this rule for certain employment-based categories where the period of the violation did not exceed 180 days, or where the period only exceeded 180 days due to a “technical violation” or through no fault of the alien – and potentially, this could include a person with a pending asylum case).
Can I use this as an excuse and say since its no fault of mine that I’ve not been called for an interview and have exceeded the 180 days, based on a pending asylum case and adjust status to LPR?
Maybe, but you would need to talk to a lawyer about that. I have never tried it, and I know of no example where it was successful, but I do not do many I-140 cases, so I am not really in the loop on this. Talk to a lawyer who does such cases and maybe you can use it. If you do, please let us know, as that will help others. Take care, Jason
Hi Larry,
I am in same situation, any good luck with I-485 adjustment of status?
Thanks
Hi Jason,
I read your blog and found it much informative.
I have a question. Will I be able to adjust my status if I came legally to US and applied asylum while I was in Valid visa .My I140 got approved and I only have asylum pending status now. I wan never interviewed for asylum. Will it count as technical reason for exception and make me eligible to adjust status.
Please help!!!. I did a lot of online search but dint find any relevant information.
I think you will not, and that you will need to leave the US to get your GC (whether this is possible, I do not know). There may be an exception that allows you to adjust status and get the GC inside the US, but you would need to talk to a lawyer who knows about employment-based immigration. Make sure the lawyer maps out for you how you will get to the GC (preferably in writing) in order to protect yourself. Take care, Jason
Hello Jason,
My husband entered US March 2017 on B1 visa and has had asylum pending case since Sep 2017(2 weeks before B1 visa gets expired). I am here on my F1 visa. Now he is in the process of EB2 from his company. We are from travel ban countries so leaving US for adjustment of status is not an option for us. Is it possible to apply for F2 status for him meanwhile(or even before) his EB2 process, this way hopefully he gets F2 status and be able to have legal status for I485. Is it even an option?
I think he is probably not eligible for EB2 or F2 unless he leaves the US and gets his new status overseas. I would talk to a lawyer about how to do this. Despite the travel ban, it may be possible for him to get Advance Parole, leave the US, and then return with a GC or an F2. I am not at all sure about this, and I think it would need to be researched before he tries (unfortunately, the law in these areas keeps changing). Anyway, though I have my doubts, it is probably worthwhile to talk to a lawyer and go over the specifics of the case to see the options. Take care, Jason
Hi Jason, I have a pending asylum case, I was interviewed 3 months ago and I didn’t get the decision yet; USCIS said that the final decision is pending security check. I am also preparing to apply for I-140 (via NIW) and I-485 concurrently. Will the pending asylum affect the decision and processing time of I-485 if the NIW was approved?
P.S. I did not stay out of status for more than 180 days, the 180 days will be reached in two months.
Thanks!
If you are even out of status for one day, it is probable that you cannot adjust status. You must be lawfully present to do that, or meet an exception to the rule. I would be very sure about that before you spend the money on the I-485. Whether the asylum case would affect the I-485 (assuming you are eligible) is not certain. When we have done that, the asylum case sometimes causes delay and then we contact the asylum office and ask them to help (I think they need to send a file to USCIS, but maybe sometimes this happens automatically). I recommend you double check your eligibility for the I-485. Take care, Jason
Thank you Jason!
I thought that I fall under INA Section 245(k) which allows those who violated their status for 180 or less days from their last lawful admission to adjust status based on an approved NIW!
I am more concerned about the delay due to pending asylum case. I think the security check might take really long time.. maybe years! An attorney told me, after evaluation, that I am eligible for an NIW, but she is not sure whether the asylum case might cause delay to the I-485. So I thought that you might worked with clients in a similar situation. Is there any delay after USCIS receives the file from the asylum office? Does that also mean that they consider the Asylum case cancelled or withdrawn?
Thank you very much for your wonderful blog and your precious time you assign to answer our questions.
My best,
Tareq
You might meet an exception, but I would be as sure about that as possible. As for the delay, it seems that sometimes, an I-485 is delayed by a pending asylum case; other times, it is not. I have not done so many such cases that I have anything other than my own anecdotal experience, but that is now I see it. If the case is delayed, we contact the asylum office and they should be able to do whatever it is they do to move the case along. If that does not work, we try to withdraw the asylum case. Take care, Jason
Thank you Jason! That was very insightful! I will let you know what happens with me.
Tareq, could you please let me know about the outcome of your NIW application? I am in a very similar situation and would desperately appreciate your help. You can also write to me at edvardo.mendis @ gmail. /thank you so much
Hey Jason,
My employer’s lawyer seems to have very little idea of asylum application’s implication on my Employment based application in process. So, I am seeking your cursory opinion.
I currently have pending asylum as only basis to stay in US. My I140 is approved and they chose AOS option to move forward in I140 application.
I entered legally as F1 student and filed for asylum few days after my F1 status ended about a year ago. Do you think I could qualify for the exception(INA 245(k) or any other) with just pending asylum(since I have less than 180 days of unlawful presence)?
Thank you so much for everything you are doing.
I think your lawyer needs to figure this out. Sometimes, lawyers are required to do some research to determine whether a person qualifies for some type of relief, and that is the case here. Whether you meet an exception to the rule that people whose status has expired cannot adjust status (and there are some exceptions) is case specific, and so I do not know. But the lawyer has all the info, and hopefully, they can figure it out. In general, however, a pending asylum case is not a status for purposes of AOS, and such people need to leave the US to get the green card overseas. Whether this is possible in your case, or whether you meet an exception, I do not know. Take care, Jason
Jason,
Good afternoon and thanks for such an informative article. I had a question, is it posible for someone who applied for asylum and whose asylum application is still pending to simultaneously do a PERM through EB-3 category and then subsequently file I-140/AOS concurrently? From what I gather online it seems that it should be posible as long as the asylum is still pending at the time the AOS is filed. Is this correct? Thanks in advance for your help.
If I understand the question, I think that is not correct unless you also have some other status besides asylum pending. You cannot adjust status if your only status in the US is the asylum case. If you have some other status (H1b, for example), you probably can adjust status – talk to a lawyer about the specifics of the case to be sure. Take care, Jason
Jason, thanks for taking the time to respond. Given the person is pending asylum status with work authorization etc wouldn’t that be considered being in status (a pending application to remain permanently in the U.S.)? Is there a regulation from USCIS that prohibits COS from pending asylum to let’s say AOS based on a PERM? From what I could gather online, my understanding was that as long as the asylum case was still pending at the time you filed AOS/I-140 concurrently after PERM certification, then it was ok. But I’m aware that a lot of the information circulating online may be false and that’s why I decided to ask you. Any additional insight is greatly appreciated.
Pending asylum is not “status” for purposes of COS or AOS. Sometimes, it is still possible to change or adjust status, but you would need an exception to the general rule, and you would have to have a lawyer look at the case to determine that. The article above gives a general idea, but each case is different. Take care, Jason
Hi Jason,
What if the Asylum is Granted and the AOS pending with USCIS at TSC. My spouse and I both had overstayed our visas when initially in the USA. After Asylum was granted we left USA with Travel Document for 30 days to a third safe country and were admitted back to us when returned. Now there is a long backlog and with Asylum AOS and we are thinking to apply for PERM and Petition for EB3 through our jobs. Is that an option? We are not from countries where there is a cap limit for EB visas. Now my questions:
1. Do you think the fact that we left the US and admitted back as Asylee and Asylee Derivative will
help us to get the overstayed visas bars waived for EB AOS?
2. Can there be a conflict that we already have a i 485 pending based on Asylum Granted?
Thank you Jason for you time and help!
I guess that is an option, but I doubt it will be faster than an already-filed I-485. As to your questions: 1 – I think any lawyer who will pursue this should research that question to double check, but as I understand your situation, I think the overstay will not be an issue (since you have asylum). I am not 100% certain, and so you should double check this before you proceed. 2 – Again, I am not sure, as I have not tried this, but I doubt it. I am not sure how to check, and my concern would be that you would have two cases pending but USCIS would only have one copy of your file, and maybe this would create issues. Again, I doubt it, but I am not certain. Take care, Jason
Dear jason! Appreciated for you great work.I am regular readar of your blog since 2013.I have some question and i want explan about my situation.I applied asylum 2014.Situation turned worse to me.On 2016 i faced sad tragedy in my family.So returned back to home country without using AP.Since i came back to home country ,my case was pending.But situation turned more serious.Asylum office send interview notice when i left.now i am in hospital,i was almost killed.When i came back here they attacked me again.Jason-Now i am in critical conditions.I already missed my interview-and don’t know about my case status.Did they referred to court or what happened.I do have visa until 2019.But I think I cannot go back again.this is mysterious confusing in my life.what is your suggestion!
If you are not in the US, and you missed the interview, your case was probably sent to the Immigration Court. You could try to board a plane a return here with the current visa. Whether that will work, I do not know. Once you arrive here, probably you will be detained at the airport, but again, I do not know. If you are detained, you can ask for asylum at that time. You will have a more difficult time winning, since you returned to your country. I suggest you try to talk to a lawyer in the US before attempting to return here, as you might at least prepare yourself for whatever might happen. Good luck, Jason
Dear Jason,
It’s been great pleasure to keep follow your website for years since it’s so much useful and proper. Many thanks for that.
I have got asylum case pending for two years since 9-2016). I came to the States
with Visa J1 (not subject to 2 year rule) .
I am planning to get married to my girlfriend in two months. My questions are:
1) can I do finical sponsor for myself (or add up with my girlfriend’s income) in green card processing (I have got EAD and paying taxes)? If not, how much minimum income does it require my girlfriend to have to sponsor for me?
2) in case we have to get a cosigner to cosponsor for my girlfriend, how much does it require the cosigner to make a year/anual income on last tax return ?
3) how long should my girlfriend file paper (i130, green cards, work permit, advance parole, travel documents…) for me after we get married? And what forms are going get approval first?
Thanks,
Looking forWard to a reply
best regards,
Kc
1 – Check the form I-864A about including your income. For the minimum total income needed, check the I-864P, both available at http://www.uscis.gov. 2 – If your girlfriend does not meet the income requirement on the I-864P, either you or a joint sponsor will need to make up the difference. Check the form instructions for the various forms, and the I-864 also, about that. 3 – I cannot provide specific instructions, as I am not familiar with the case. Generally, if you look at the instructions for forms I-130 and I-485, you will get an idea about this, but if you are not sure, talk to a lawyer, as USCIS has indicated it may deny cases where people make errors. Take care, Jason
I have the same issue, I have a pending asylum case and I am married to a US citizen, I went to see a lawyer to help adjust my status but I was told I cannot cosponsor, my wife doesn’t have the minimum total income needed because she claims few kids on her tax return; I am working and make good money.
I normally just get a joint sponsor in this situation, but you may be able to do that using form I-864A, available at http://www.uscis.gov. I may be wrong, but it is probably worth a look at the form instructions to see if you can use your income. Take care, Jason
Hey Jason,our client’s case was referred to the immigration court. Before, I remember that the clock said days passed. In this case it says there is no clock. It also said the judge’s name case allotted to. How can I know if my client is eligible for EAD? and is clock stopped or not?
In this situation, we try to contact the court clerk. Usually someone in the court is able to deal with asylum clock issues, and this person can hopefully sort it out. You can also probably ask the judge’s law clerk for the status of the clock (though maybe not to fix the problem). If you can talk to someone there, at least you might know if the clock really is stopped or disappeared, and maybe you can find out why. You can find the clerks’ contact info if you follow the link at right called Immigration Court (under Asylum Seeker Resources). Take care, Jason
Hi Jason !
I’m reading your blog (honestly It’s much bigger than blog !) for 3 years. before I’ll come up to my question, I’d say you – Thanks ! for so good content you are publishing.
So, I waited for article like it for long time, I waited for month after it’s publication to read all comments and find question which is similar to mine, but I did not find….
Jason, please advise or share our experience on following situation.
Asylum case filled on in 2015 in LA by mi wife. Did not have interview yet.
H1B petition was selected this year and approved. My H1B case very strong, and there won’t be issues if I do no have pending asylum case.
My layers are not so experienced, and they do no have any information/.statistics – that’s why they do not want me to take a risk and do consulate process. But they did a good job and in my I797 I have consulate appointment in Toronto (not my country of origin).
Now I have dilemma – I need to switch my status to H1B…. my family tired be in this status, my carrier suffers, I haven’t not see my daughter four years, our relative is dying due to cancer….
My questions are. If I could manage i131/AP and arrive in Toronto for interview:
1. What are chances to be rejected at consular interview ?
2. What are changes to be rejected at port of entry by CBP ?
3. What technically can prevent me from being admissible on H1B visa ?
Or it makes complete sense to close Asylum case, return to country of origin and start from scratch ?
Appreciate your response.
1 – I do not know about that, as it depends on the strength of the H1b case. The pending asylum should not affect this (since the H1b is a dual intent visa, it does not matter that you have a pending application to remain permanently in the US). 2 – If you have the H1b visa, I do not see why you should be rejected at the border. The asylum again has no effect. 3 – If you get the visa, you should get in. What blocks people is a prior criminal or immigration issue (such as a deportation order). I do not think the asylum case will harm the H1b case, so I see no advantage of closing the asylum and starting from scratch. Plus, if you do that and go to the home country, it may cause the US government to believe that the asylum case was fake, and this could block you from getting an H1b visa (and any other visa to the US). Take care, Jason
Hi Jason!
Thanks for sharing your thoughts!
It’s valuable for me to know your opinion. My perception – Nobody knows about asylum process better than you. Yep I think so,
My H1B case, should be strong enough, At least I think so. I cannot share details, but I have ~20 years of relevant experience, master degree in STEM, well know big company, and above average compensation.
I do not want take your time much, so, please let me ask you with last question.
There is no idea in my head how following might impact/harm my interview process at consulate.
We filled asylum case after 50 days of I94 expiration. Technically we accrued 50 days of unauthorized stay in US. I won’t complain on layer who was swindler and hooked us as newbie. It is as it is.
I expect there will be question from officer side about my overstay
Thank you in advance!
PS. If I take this step and you would like to know from my side how it was. I’ll be glad to share it with you privately. It might help others to be more certain about this way.
I think you need to talk to your H1b lawyer about that. It may have an impact on your ability to get the visa – but it is not really my area, and I do not know your case. An overstay of 50 days does not bar you from a visa, but it could affect the application as a matter of discretion. Take care, Jason
Do you think HR392 has the chance to become a law? If so, applying for the PERM wont be that much helpful for those in lawful statues, right?
Thanks Jason.
Sorry, I do not know about that bill. Take care, Jason
Hello Jason,
I applied for asylum late May this year and had my interview in early July at the Arlington office. The decision was changed to mail-out on the day of pick-up instead. It has been more than two months since then. How long does it usually take to receive a decision in this situation? Is there possible to ask the office about the status of my case?
Also, I can apply for my first EAD in mid-October, and I wanted to apply by myself. However, there was a G-28 form attached to my I-589. I checked the box to have documents like PRC, EAD, and Travel Document sent to my attorney’s place back then. Can I fill out i-765 by myself and have the document(s) sent to my attorney, or does it have to be done by my attorney? Lastly, how do I request to let DHS send documents to me directly in the future?
(I tried posting this a few times but it does not appear anywhere, hope it is only a technical glitch)
Thank you for your help in advance.
Sincerely,
Alkam
There is no time frame in this situation, though most cases are resolved within 6 months. It is generally slower for Muslim men than for others. You can inquire about your case with the asylum office. You can find their contact info if you follow the link at right called Asylum Office Locator (under Asylum Seeker Resources). As for the EAD, you can do it yourself. The G-28 you filed only applies to the asylum case, not to the I-765, so if you do not use a lawyer, everything should come to you. Take care, Jason
Dear Jason,
Thank you so much for your acute response to my questions. I did check the Part 3 section 2.b. box on the G-28 and saying to send the necessary documents to the lawyer’s address. It states at the end that I need to request, at any future date and through written notice to the DHS to have the documents sent to me directly.
Is there another form to fill out for this process, or do I write a letter before filing I-765 saying I would like to receive the documents directly?
Sincerely,
Alkam
I think that unless you send a G-28 with the I-765, the old G-28 does not apply to you, and everything will go to you. Maybe if you are concerned about this, you can include something in the cover letter about how you are not using the lawyer for the I-765 and all document should be sent to you. Take care, Jason