If you lose your case in Immigration Court, you can appeal to the Board of Immigration Appeals (“BIA”). Conversely, if you win your case and the DHS attorney (the prosecutor) is unhappy with that outcome, DHS can appeal. Here, we’ll talk about what happens during an appeal to the BIA.
Once the Immigration Judge (“IJ”) makes a decision, the parties have 30 days to file an appeal to the BIA. The IJ should indicate on his decision when the appeal is due, meaning the appeal must be received by the BIA on or before the due date. Otherwise, the IJ’s decision is final and the case is over. Appeals are filed using Form EOIR-26. The fee is currently $110 (check to “United States Department of Justice”) or you can request a fee waiver.
The EOIR-26 is the notice of appeal. On the form, you must indicate the reason(s) why you are appealing. Here, you have to be specific, as indicated in the form instructions. If not, the BIA could dismiss your appeal on that basis alone. When I file an EOIR-26, I list the reasons for the appeal and I also note that we “reserve the right to raise additional arguments in our brief.” Next, you have to check a box indicating whether or not you want oral argument. The BIA rarely holds oral arguments (where the attorneys come before Board Members to discuss the case), and so whether you check yes or no probably doesn’t make much difference. But if you have a burning desire to present your case in person, check “yes” and maybe you’ll be invited to Falls Church for an oral argument. The EOIR-26 also requires you to indicate whether you will file a brief. A “brief” is a legal argument explaining why the IJ’s decision should be overturned. While you can file the brief and the Notice of Appeal together, it is more common to file the brief later on. Be aware that if you check “yes” to the brief, you will be required to file a brief, and if you fail to do so, your appeal will be dismissed.
The EOIR-26 should be mailed to the BIA at the address specified in the instructions. Include with the appeal a copy of the IJ’s decision. If you have a lawyer, the lawyer should include an EOIR-27, appearance of counsel form. You have to send a copy of the entire packet to the DHS attorney’s office (the office of the “prosecutor” who litigated your case before the IJ). You can find their address here.
After the EOIR-26 is filed, you will receive a receipt. You are allowed to remain in the United States while the appeal is pending. You can also renew your Employment Authorization Document (“EAD”) while the appeal is pending.
If you indicated on the EOIR-26 that you plan to file a brief, the BIA will send a briefing schedule. How long it takes to get the briefing schedule is hard to predict. For a detained case, it may take a month or two, but for a non-detained case, it probably takes anywhere from six to 18 months. Along with the briefing schedule, you will receive a transcript of the Immigration Court case. This document contains all the discussions that took place at each appearance before the IJ. Depending on the case, it is usually very helpful to have the transcript, as oral statements made in court are often relevant to the argument you will make on appeal. For this reason, we do not submit a brief when we file the EOIR-26. We wait until we have the transcript and can then submit a more complete–and hopefully more convincing–argument.
Once the briefing schedule arrives, you have 21 days to file the brief (why they give so little time to write the brief, I do not know, but I complained about it here). You can ask for an additional 21 days, but you have to articulate a reason why you need more time.
The brief is the heart of the appeal. In it, you explain why the IJ erred and ask the BIA to overrule the court’s decision. You can see a sample brief here.
Some types of IJ decisions are easier to overturn than others. If the judge denied your case based on credibility (in other words, because the IJ thinks you lied), the BIA will only overturn the decision if it is clearly erroneous. On the other hand, if the IJ found you credible, but determined that you did not meet the legal standard for asylum, the BIA reviews the decision “de novo,” meaning that the Board will make its own decision and will not defer to the reasoning of the IJ. Put another way, the standard of review for factual errors is high and for legal errors is lower, and so in general, it is easier to win an appeal where you are arguing that the IJ made an error in interpreting the law rather than an error assessing credibility.
All that said, it is difficult to win any appeal at the BIA. That has always been the case, but the situation got worse in 2019, when the Trump Administration elevated six Immigration Judges known for their high denial rates to the Board. As a result, the Board is even more unlikely to overturn an IJ’s negative decision. Nevertheless, it can sometimes happen, and if you are not satisfied with the results in Immigration Court, you have the right to appeal.
After you file the brief, the wait time for a decision is unpredictable. Cases where the non-citizen is detained are faster–maybe another one to three months (on top of the time you already waited before the briefing schedule was issued). Non-detained cases are much slower, and can take anywhere from six months to a year or more.
Finally, you will receive a decision. Typically, either the BIA dismisses the appeal, meaning that the IJ’s decision stands, or remands the case back to the judge to remedy any errors and correct the decision (and hopefully grant relief, but this is not guaranteed and varies by case).
If you do not like the BIA’s decision, you can file a petition for review to the federal appeals court with jurisdiction over your case. Filing such a petition does not stop ICE from deporting you, though you can (and should) ask the federal court to issue an order “staying” (preventing) your removal while the federal appeal is pending. Such cases are usually difficult to win, and they are procedurally complicated. You can learn more about litigating an immigration case in federal court here. From the federal appeals court, the next–and final–step is the United State Supreme Court. Very few cases reach that level, and so usually if the BIA is not the end of the road, the federal appeals court is.
Unfortunately, the entire immigration system is legally complex, and that is particularly true of BIA cases, where legal arguments may not be apparent to a non-lawyer. If you have a case before the Board, your best bet is to find a decent lawyer to help you. You can learn more about the whole process in the BIA Practice Manual. You may also be interested in the BIA Pro Bono Project, which matches attorneys with BIA cases (usually for noncitizens who are detained). Finally, there is this website, which helps non-represented applicants find a pro bono (free) lawyer. Despite all the difficulties, it is still possible to win at the BIA, and if you are not satisfied with the IJ’s decision, you can appeal and seek a better result.
Hi Jason,
My asylum case is appealed with the BIA now, it was denied due to my attorney’s error (ineffective assistance of counsel). Miss a hearing.
I chose “no” for written brief.
How can I file a motion to remand? How long does it take?
Because I want to withdraw my asylum case, I’ve applied I-130, it’s pending.
Thanks!
I think you need to get help from a lawyer, as this is not so easy and a mistake at this stage could cause big problems. Also, depending on how things proceed, you may need to file a bar complaint against the prior lawyer. In general, assuming the I-130 is filed by a US citizen spouse or adult child, and that you are eligible for the GC, after you file the I-130, you inform the BIA and ask them to remand. Sometimes, they want the I-130 to be approved before they agree. I do think it is best to talk to a lawyer, as it sounds like you have a path to a GC and it would be good to have some guidance so you can avoid any problems. Take care, Jason
Hi Jason,
Thank you for your help!
I still haven’t found a lawyer who can help me get asylum case in my state, CO.
My purpose is close my asylum case. How can I easiest way to withdraw the case with BIA? Just mail them request to withdraw?
The last time my hearing, I planned to request withdraw with the IJ.But missing hearing date lead to case been denied. I don’t want do any brief.
Maybe try to find a lawyer in another state, as that would make it easier. But if you cannot, maybe contact the DHS Attorney (the prosecutor) and ask them. You can find their contact info if you follow the link under Resources called DHS Office of the Chief Counsel. You can call and ask for the duty officer. Sometimes, they will give you an email address. You can send them evidence of the marriage and your eligibility for the GC, plus the I-130 and I-130 receipt. Then you can ask them if they would be willing to dismiss the case. If so, maybe they would file that request for you. Take care, Jason
Hi Jason,
If DHS appeals the judge’s decision based on credibility what will happen to BIA?
Thank you.
DHS will need to present an argument about why the judge was wrong on credibility and the noncitizen (or their lawyer) would present an argument why the judge was correct. It is difficult to win an appeal when the issue is credibility, and so normally DHS does not appeal such rulings, but of course, it depends on the case. Take care, Jason
thank you so much,
yesterday I had a hearing after 4 times postponing and then the judge was about to issue a grant but DHS brought everything up from the beginning that my testimony was not credible and The judge was so mad and argued with her for about half an hour and then the time ran out and then he told her and my attorney would be sent a letter and will have them for closing statement and arguing statement and he told us we should not be present and just attorney and he will issue the decision. ( DHS mentioned we are a danger to the security of this country and the judge said what is your proof she had nothing 🙂 ).
Hopefully it will work out ok. I do not know why they tell people that the noncitizen should not appear in court. It is your case and you have a right to be present. That said, you probably don’t want to anger the judge and your lawyer can advise you about this. Good luck, Jason
Hi again Jason,
I have a question, if DHS brought up non citizen if danger for national security without any reason it will effect to judge decision, cause i heard judges scare and sometimes deny the case, have you had any cases like that, let me open more, 4 years ago I had job packaging and labeling and one day DHS came in to my house look everywhere and I was told you are shipping parts of gun but since that day i have not heard anything about them and this is the thing DHS brought up at hearing. please help me, thank you so much.
I think DHS would not mention that unless there is some evidence, which they should submit to the court. If they do, you should be given a chance to respond to it. I do not think DHS would make an allegation without evidence, and if they did, the judge should not accept that (and some judges will get angry if DHS tries that). Take care, Jason
Jason,
judge asked for evidence and she said she had nothing but the case is going on and judge said there is not conviction and no evidence and then DHS brought things about credibility and the judge got so mad and she had no evidence and she just assuming, thank you.
Also in this situation can file work permit under 05 or travel document or have to wait till BIA makes decision about DHS appeals?
Until you have a final decision (meaning no appeal to the BIA), you can only apply for the EAD based on category c-8, asylum pending. Take care, Jason
Thank you so much, Jason,
if DHS appeals, how much time for BIA to review and make the final decision?, thank you.
Most BIA appeals take one or two years, but I think it can be shorter in some cases and longer in others. Take care, Jason
Jason,
As i told you i had my individual hearing October 13th, then DHS was not happy and judge was about to issue decision then judge said to DHS and my attorney closing argument so since that time my case has not been scheduled, as your experience how much takes time to give us another hearing date should i wait again years?!!!!
It would be rare to wait for years, but it could be a few months. Your lawyer can follow up with the judge’s clerk if there is no news and the lawyer thinks the wait has been long enough, but I think your lawyer is the best person to know about that. Take care, Jason
Thank you so much, and also as judge requested that only attorneys have to be presented, he will render the decision by mail or oral to my attorney?.
If the judge wants the lawyers present, either the judge wants to discuss the case or maybe the judge will issue a decision. You do have a right to be present, but if that will annoy the judge, maybe it is better to not be there – you can ask your lawyer what is best, as the lawyer knows the judge and what the judge has said. Take care, Jason
Hi Jason,
So the judge gave us November 9th master hearing based on internet what do you think it can be issue decision or not?
Some judges do issue decision at the Master Hearing, but I guess you will have to wait for that court date to see. Anyway, it is not too far off. Good luck, Jason
Hi Jason,
Yesterday i had hearing based on internet and DHS stepped back form what she said about background check and its cleared now, but she said she has credibility issue and my attorney prepared everything and he was ready just about background check issue so judge gave us another day 27th of this month and told my attorney to make a BRIEF, what that mean? why?, the judge dose not know my case?? Last hearing he was about to issue the decision but DHS brought thing up about my background check why they are playing like this just back and forth, finally we need to be attend on 27th and judge said he will give us another hearing On February 2024 just for giving decision or mail the decision before that day, please help me and give your comment.
A brief is typically a legal argument explaining why you are eligible for asylum or other relief. Maybe there is a legal question in the case and the judge wants more information from your lawyer about that. In terms of what each hearing will be, I do not know, but your lawyer should know this. We have had some cases where there are problems with the background checks. When that happens, it does sometimes cause delay. This is very frustrating, as there seems to be nothing we can do about it. Eventually, it is usually resolved though. Take care, Jason
Hi Jason,
My case was denied by immigration judge. Judge said my testimony is credible, but didn’t meet persecution standard. My case is based on political opinion.
My law firm didn’t remind me to update family’s testimony before individual hearing, any chance I can file motion to remand?
Thanks
John
It depends on where your case is now. If it is at the BIA, maybe you can remand for this reason. It sounds like you are stating that your asylum case was denied due to your attorney’s error (ineffective assistance of counsel). To do that, you have to show that this error caused your case to be denied. This seems unlikely to me, since an error like this would normally go to credibility, and the judge found that you were credible. However, if you think the case was denied due to your lawyer’s error, you could have a different lawyer review the work to see whether a motion to remand (or some other motion) is appropriate. I should caution you that remanding on this basis might require a bar complaint against your lawyer, and many lawyers will be hesitant to do that. Take care, Jason
Hi Jason,
I have a question regarding BIA, if the judge denied the case cause credibility but its 100 percent evidence about converting religion which is in my country it is death penalty for that how much is the chance for BIA to change the judge decision?
There is no way to predict, as it depends on the evidence that your conversion is genuine and also on the BIA board member (judge) who reviews the case. Some are much better than others. To me, the key to such a case is proving that the conversion is genuine, and so if the judge did not believe you, you would need to show why the judge is wrong. You might also consider submitting additional evidence of the conversion (letters from people at your church, photos at church and other religious activities, etc.) and filing a motion to reconsider based on the new evidence. The problem is that such motions will normally be denied if this is evidence you could have submitted with the original court case. Anyway, it may be worth discussing with a lawyer to decide whether it is an option. Take care, Jason
Hi Jason,
I got my GC after applied for asylum. I applied for naturalization two weeks ago. I do not have middle name so in n400 form I added None in that space since we should not have any empty space in immigration forms. They sent me the receipt of n400 form and they added the None in my name.how can correct this mistake?
Thanks
I think it will be easiest to correct at the interview, but I guess you can send them a letter explaining the error. Make sure you include your receipt number and Alien number (and maybe a copy of your receipt) with the letter. Take care, Jason PS: Sometimes, they are real morons.
Just adopt the name “None” as a given name, and add uscis in bracket 😂
Just kidding.
Unbelievable!
@Tina thank you for making me smile. You are a ray of hope for me.
Hi Jason,
My I-131 application was received by USCIS on Nov 05. Yet till today, USCIS did not send me a receipt notice nor cashed my check! Is this normal?
These days, it is difficult to know what is normal. I do think it is a bit too soon to worry (especially since Thanksgiving occurred and USCIS was closed). Maybe you will get the receipt soon. Once the check is cashed, if you can get a copy from the bank, the receipt number will be on the back. I guess if nothing happens soon, you can call USCIS at 800-375-5283, but unless there is a real emergency, I would give them another week or two. Take care, Jason
Posting my airport questioning experience in Dec 2020 as an LPR (based on Asylum) returning back to the US after staying in COP (Islamic country) for 4.5 months. Right before leaving for this trip, I renewed my COP passport which I used to travel back (because i-131/RTD kept getting delayed despite more than one “expedite” requests, due to COVID backlogs at USCIS perhaps”).
Sidenote: I also applied for Global Entry/TSA-Precheck earlier this year, and was conditionally approved last month while still in COP, and intended to interview on-arrival.
Scene 1: Went from the aircraft to CBP counter, handed officer-1 passport, he asks, “where’s the visa/green card”. Searched all pockets of bag, no GC anywhere. I panicked took another 5 minutes to go through all stuff which I laid on the floot, all while the officer looks on. Couldn’t find it, so he said, ok lets go to another desk. I told him I wanted to interview for Global Entry, too. He said while we walked: first, you go to Officer-2, who will sort out your green card issue, then he will direct you to Officer-3 for pre-check enrollment.
Scene 2: I was seated, asked to wait, while waiting i emptied my two bagpacks, found GC in a previous passport. Went to the officer nearby, he took the card called me over to his counter. The he quewtionsed me:
1. You use social media (wrote down handles/skype ID)
2. Have you been to Iraq/Iran and other “similar countries”
3. Ever military trained or trained in weaponry.
4. Do you visit your country often? (I said no, first time visiting since asylum)
5. Said how long you been there (I counted months on my fingers).
6. Did you intended to come back earlier (I said yes, but then COVID-skyrocketed in my US city-of-residence so extended the stay in COP, which in a cruel turn of irony, was more “safer” in this instance)
7. Took down address, phone number, email address, place of birth.
8. When did you first come to the US? When did you attain this GC status? Why did you claim asylum (specifically, “were you attacked”).
(QUestions not in order).
Scene 3: Officer 2 stamped by COP passport with admitted “ARC 4 months” stamp, and took me with him to another area with similar CBP booths, said this officer will conduct your Pre-check interview. After interview, and approval, I was given “Known Traveler Number”
Scene 4: Last CBP Officer was the one who I handed the customs declaration after getting checked baggage from carousal, and before exiting airport. My Customs decalrationw as empty, nothing to decalre, but this interaction was strange because officer asked: Where are you coming from? Then asked: Why are you coming to the US (I gave him a prolonged stare, said “returning back home”. then he said, “why did you go to COP? Then “any fruits or meats or X or Y in your bag”, said no, then exited.
My RTD is still under processing from 6-7 months, and I applied a few weeks before leacing the US.
oh, and btw, the Global Entry/TSA Pre-check CBP Officer who interviewed me said that this pre-check/entry status is linked to GC (so I don’t need to register my RTD once I receive it. He said I will just tap my GC on kiosk next time I arrive from abroad, no need for any passport showing to officer unless I get called in. He said I’ve registered your GC with your COP passport for global engtry purpose but that is customary since no matter what passort youuse, you wil only use GC at kiosk. He didn’t seem too bothered about COP passport. I said I’ll use RTD (but I haven’t received it yet so you cannot register it), he said that’s fine.
and they were using my COP passport just as a reference (he
Bummer! I felt like my line got disconnected while I was listening to very important conversation. Please continue and share the rest of your experience. I can’t wait to read more.
Thank you for sharing this. The issue could come up again at a naturalization interview, so you should be prepared to explain why you returned and how you stayed safe (with evidence) and maybe to revisit the asylum case to determine if it was fraudulent. That said, I have had asylee clients return (especially when they fear terrorists and not the government) and no one has yet had any real problem at the border or during naturalization. Nevertheless, it is good to be ready, just in case. Take care, Jason
@LPR from Asylee
Pls continue with that interesting story because I wish to travel for my mom’s burial. I’m the first born.
My case was approved at the asylum office
Do I need to apply for the ead or will they automatically send me one?
I lost my ead 3 years ago and never renewed it as I was pregnant and didn’t had to work
So now if I apply for renewal how I will send them a copy of older one?
They should automatically send a new EAD (under category a-5). The problem is that everything is slow. You might email them to ask how long they expect it to take to get the EAD, but they may not know. You can find their email if you follow the link at right called Asylum Office Locator. Also, the letter you received from the asylum office may have some info, and this website might be of use: https://asyleeoutreach.org/. Take care, Jason
Thank you Jason for your reply
Hi Tas,
I was wondering how long did you wait for your asylum decision to come and which office did you have your interview? if you do not mind me asking.
Thanks
Hi KAY
I had my interview at Newark
Applied August 2016
Interviewed August 2020
Decision November 2020
hi Jason
today I finish my i730 petition interview ( i am the beneficiary ) got approved on the spot but they said we will mail you the decision. I got home and check the case status it says .your interview was completed and your case must be reviewed. and status INITIAL REVIEW.
I would not worry about that. It may get updated later, and in any event, the online updates are not completely accurate or up to date. Take care, Jason
Hi Jason, My a political friend reached on F1 Student Visa in California. He ia political activist in Pakistan.He has state fare back and he filed i589 form for Asylum. My Question is: 1. Will Asylum Application Effect his F1
Status? 2. After how many days we can file Work permit Application? Thank You.
1 – Typically, an F-1 student in lawful status is not effected by filing asylum. However, if the person leaves the US without Advance Parole, he may not be able to return. It is not impossible that USCIS could cancel the student visa of a person who files for asylum (since students promise to leave at the end of their studies, and asylum seekers want to stay permanently), but I have never seen that happen. 2 – If he files now, he must wait 365 days to file, unless he is a member of one of two organizations (I wrote about that on September 23, 2020), in which case he can file for an EAD 180 days after the asylum application was received. I do expect the Biden Administration to change this rule, but that may take some time. Take care, Jason
Hi Jason,
We truly appreciate all that you do and the free advice that you dish out here.
I checked in with my attorney last week. I filed my asylum case in LA in 2016 and I have not heard from them since then. During our conversation, I mentioned that maybe I should contact my congressman and have them call the USCIS regarding my case. My attorney literally blew up and was mad that I was thinking about going that route. That really shocked me. Why would he object to that? It’s been a month and I can’t get over it.
I have no idea. Perhaps one issue is that if the Congressman causes the case to be expedited (unlikely, but not impossible), you (and your lawyer) would need to finish the case and file all evidence. If the attorney is busy (and many of us are constantly overwhelmed), it may be stressful for the lawyer to think about. That is an explanation; not an excuse. There is no reason for the attorney to get angry based on the situation you described. I would ask him for an explanation, and if it was not satisfactory, you might want to look for a new lawyer. Take care, Jason
Hi Jason,
Hope you are doing well.
Do you think the Biden administration could accelerate the court hearing process faster?
If I want to re-calender my case, is it better to wait until the Biden administration comes in?
Thank you very much for your time and suggestion.
Prior to the election, they announced a plan to double the number of Immigration Judges. Whether that happens, we shall see, but even if it does, it will take many moths to implement. If you want to recalendar a case, you can try that anytime. Whether to wait for Biden, I don’t know. I guess it would depend on the case and whether I thought any changes Biden might make (such as revering Trump’s decision to block victims of domestic violence from receiving asylum, for example) would help with the case. Take care, Jason
Dear Jason,
Hope you and your family are doing well in this difficult time. We always thankful for sharing your thoughts on asylum community and your non-stop kind replies to our comments.
My question this time is about EAD application process. Couple days ago I saw someone posted a question similar to mine and your answer as well. But I am still so nervous waiting waiting…
I applied for EAD filling I-765 forms along with my wife on October 26 and on Oct 28 our applications (C08) were received at USCIS lockbox in Lewisville, TX 75067. We are member of ASAP organization (as you advised) and our I-589 Applications are pending over 180 days. Everything USCIS required is filed along with ASAP membership card copies for I-765. Also we gave our fingerprints (biometrics) for I-589 on November 09th.
It has been over 30 days and no EAD application receipt nor rejection notice in my mail box. I called USCIS and they said they had no idea about our EAD application status (They checked my case in their database and said there was nothing about EAD application process). Only their advise was to write an inquiry e-mail to LockboxSupport@uscis.dhs.gov. I did it already 2 weeks ago and there is no answer yet.
Do you have similar cases with your clients?
I am sure there is nothing to do except waiting.. But still….
Have a good day Jason.
God bless America and Asylum seekers.
Receipt are taking maybe 3 to 5 weeks for most cases, and so you should have it soon. If you don’t have it in maybe two more weeks and you cannot get any response from USCIS by email or phone, you may need to re-file. I would give it a couple more weeks – things are already slow, and holidays like Thanksgiving tend to make it even slower, so maybe that is the issue. Take care, Jason
Jason, thank you for your advise.
Will wait 2-3 more weeks.
Best wishes,
NEM
Hi Jason,
Assuming you are Biden, what will you do to decrease the waiting time for all types of applications? We appreciate if you write clear directions on this issue. Thanks
I plan to do some posts about this issue; specifically on asylum. I am not so optimistic that asylum wait times will be reduced, but I am starting to work with a non-profit that is lobbying to help affirmative asylum seekers (the large majority of the advocacy work involves people at the border, DACA people, and the “eleven million” undocumented people that we keep hearing about). Anyway, maybe check back in a couple weeks, as I hope to post something fairly soon. Take care, Jason
Jason, I just want to thank you for doing this.
Hi Jason. Thank you for all your work.
I have a request. If possible, may you please include i730 petitions in this project, or any other project that may be appropriate. Relative petitions based on asylum have virtually come to a standstill. 2 years processing time at Texas SC then another 2 years at embassy outside USA. The applications are so few, this wait is unjustified. After waiting 4-5 years for approval, this adds up to 10 years seperated from young children and spouses. It’s causing irreparable damage to families. Traumatizing and painful. School going children performing poorly in school because of this trauma, their life at stake. Thank you. Take Care.
This is well said and I 100% agree. I plan to raise the issue with the organization, and I hope to do a series of posts about asylum reform, and that will be one item. A related item is Advance Parole, which allows a person to travel while their affirmative case is pending. That should be much easier to get and more uniform in terms of how long it is valid. If asylum seekers could more easily travel, at least they would have a chance to meet family members in third countries. A third issue is expediting cases – I think the priority should go to people with children or a spouse waiting overseas. Take care, Jason
Hi Jason,
Thank you so much for your help and guidance.
My employer wants to file for H1B or PERM but we don’t know if that’s possible while we are waiting for our court hearing. One attorney said my employer could go ahead and file for H1B, but the other said while we are waiting for our hearing we are lawfully here, but not in status, which makes the H1B impossible. Please help.
I did a series of posts on this point in August and September 2018 – those may help. But if your case is in court, it means you are out of status and that you would have to leave the US and try to re-enter with the new visa. This may or may not be possible, depending on the situation, and it may even be possible to get a green card (but probably not an H1b) without leaving the US. In reality, the large majority of people in court will not be able to get back into status without leaving the US, and so I would want to be very certain that this will work before you leave the US (especially if you are an asylum seeker, where you would need to go to a US embassy in a third county, which can also be a problem). In short, my guess is that this won’t work, but there are some exceptions and you would want the lawyer to explain step-by-step how you will get from where you are now to having an H1b or a GC. Take care, Jason
Jason, in continuation of your reply I have a question. Is that possible that the spouse of the main applicant which is in court, may be able to get H1 or other family-based green card and add the main applicant of asylum case as her/his spouse?
Maybe – if the person who is not in court is in lawful non-immigrant status (such as an F or B visa), that person can can change status to H1b. Whether the person in court can get status based on that depends on many factors, but that analysis is the same as if the court person was the principal applicant. The very short answer (and mostly, but not 100% certainly correct answer) is that a person who is “in status” can change status or adjust status without leaving the country, but a person who is “out of status” cannot. There are exceptions (which I discuss in that series from August/September 2018), and so maybe talk to a lawyer to be sure. Take care, Jason
Thank you so much Jason.
Dear Jason,
After 2 interviews the online system went from decision pending to application pending!
What do do you think is the reason for the change in statement?Is another background check being run again or do you think I’ll be re interviewed. Can’t stop panicking and thinking of not being sent home!
I don’t know and I think those types of online changes have little or no meaning, and so I think it is nothing to worry about. You can always email the asylum office to inquire about the case – you can find their email if you follow the link at right called Asylum Office Locator. Take care, Jason
Hi, May I ask your timeline and when you were interviewed, and if you are from a Muslim-banned country. I was interviewed in March 2020 and in August 2020, the status changed to Application Is Pending. I am thinking if this is related to a security background check
Mr. Jason,
I appreciate you sharing so many valuable information with us all.
If I win my case at the immigration court would I be able to apply right away for the travel document before I apply for the green card and visit the third country?
Thank you.
Yes – if you win and DHS does not appeal, you can apply for a Refugee Travel Document using form I-131, available at http://www.uscis.gov. Take care, Jason
Hi Jason, I’m waiting for my interview since Aug 2015 in Bethpage office NY and never got any interview call. All Duffer people work in that particular USCIS office.
Forget it.
Ok so do you think Biden purposal for illegal immigrants can help asylees waiting for interview? or any other positive thing can happen for the peeps who are in same situation like me?
Just wanna sense your thoughts and if anything good is on the way.
I hope something work for that particular group of people who deserve relief now.
Thank you.
I think Biden will reverse a number of the changes that Trump implemented to make it more difficult to win asylum. However, in terms of the backlog, there has been no announcement and we do not know what – if anything – is planned. Maybe if there is a more general amnesty (which seems unlikely), that will benefit asylum seekers, but what is really needed is more resources for asylum cases and more creative solutions. I suspect more resources are not very likely, but maybe they will try to come up with some creative solutions to improve the process. Hopefully. Take care, Jason
I don’t think we should expect an overhaul of the immigration system right away. But what is very likely is that we won’t have a hostile administration running the show. Remember, most of the changes the Trump administration brought were administrative through memos and policy changes. They tried to bring changes to immigration laws but it never passed the house. Do you remember when he was attacking what he called “chain migration “ (keep in mind his wife benefited from the same process)?
My guess is that we would very likely see faster processing times especially when it comes to green cards. This administration was hell bent in keeping people from becoming permanent residents and citizens. Not so sure for people stuck in the backlog.
I think reversing many of the Trump Administration’s policies should be the first priority on immigration, including some of the burdensome requirements that have (intentionally) slowed down the GC process. I would expect GCs to move faster once changes are implemented. I am not so sure about asylum, where Biden wants to deploy more resources to the border. In the past, this approach led to slower processing times for affirmative asylum seekers. Hopefully, this time, the Asylum Division can better manage the border and the affirmative case load. On the plus side, they do have more officers available, so we shall see what happens. Take care, Jason
Same here, applied asylum in april 2016 to LA asylum office, no interview yet, you are not alone…
I have applied for asylum in April 2016 but till date I have not received any call for interview. What should I do? Please help. I also have TPS. I am in Sanfrancisco with wife and two kids.
Your situation is similar to many people. The only real option is to try to expedite the interview. I wrote about that on March 30, 2017. Now is a difficult time to expedite, since asylum offices are operating at reduced capacity due to the pandemic. However, the SF office is generally pretty good, and so maybe expediting is worth a try. Take care, Jason
Dear Jason,
It’s been a month 2 weeks since my lawyer assisted me in filling for ead under C08 category but no response yet for the receipt notice.
But the tracking number says delivered what do I do next?
Wait a bit longer – it can take 3, 4 or 5 weeks to get the receipt, so it should arrive soon. Take care, Jason
Thank you so much Mr Jason it’s been 6 weeks already and still waiting
Hi Jason,
Hope you are doing great.
I have one question. Do we belong to undocument immigration if we have a pending asylum case with court or office? Thanks.
It depends how you define “undocumented immigrant.” This is not a term defined by the immigration law (the INA). If you are thinking about a potentially amnesty (which, at least in my opinion, is very unlikely), it will depend on how the amnesty law is written. So far, we do not know. If that happens, we will see who is included. Take care, Jason
Hello Jason I hope you are well, I am applying for asylum and I had an interview with the immigration officer in 2017 to explain my case and it came out credible fear, since that date I have waited for my court date before a judge for a Master hearing that they scheduled me for August of this year 2020 due to a pandemic, it did not happen because the courts in New York were closed and waiting for another new date, applying for the i589 form and I would like to know the process under the i589 and also see if under that form I can apply for travel permit or it has to be advance parole! if there is any other type of protection traveling to a third country and meeting my parents! Please if you could explain or what to do ?! blessings and thank you 🙏🏻
You are required to file for asylum within one year of arriving here, and so if you have not filed the I-589, you should do that as soon as possible. As for travel, unfortunately, you cannot travel while you have a court case pending; if you do, you will be considered to have deported yourself and you may not be able to return (even if you have Advance Parole). You can try to get a sooner court date – I wrote about that on April 20, 2017. You should have a lawyer for a court case. If you cannot afford one, you can try to find one for free – I wrote about that on September 22, 2016. If you can get a lawyer, that person can help with case and trying to move things along faster. Take care, Jason
Hi Jason,
Now that Biden has won, I’m hearing all over this “incoming” amnesty!
Now, I understand that winning Georgia is crucial for this to happen (if you don’t have the senate then forget it).
But let’s say Dems win those 2 seats (not so sure), and this Amnesty becomes a more plausible idea, could pending asylum seekers (affirmative ones specifically) benefit from this as well?
Thank you.
Tony Stark,
That has been my question. If they are going to grant paths to citizenship to Daca recipients, and undocumented immigrants, what is his plan for people who have lived here legally for 5+ years, paying taxes, but stuck in the air.
Biden is guaranteed 4 years, if this is not resolved within the 4 years, we have no idea who will hold power from January 2025.
We will remain in this hole, and drag kids that were not born here with us.
Assuming the Democrats control the Senate, Biden has proposed a path to legalization for 11 million undocumented people in the US. Who will qualify and how this would happen, he has not set out. Until that happens, there is no way to know which asylum seekers, if any, will benefit. I think the chances of this actually happening is very low, but I guess anything is possible. Take care, Jason
First and foremost, in order for the Biden administration to grant any kind of amnesty to undocumented immigrants that would lead to citizenship, Democrats would need to control both the House and Senate (Dems have a very slim chance of gaining control both the House and Senate). If they (Dems) gain control of the Senate, they would need to unanimously agree that amnesty is what the American people want and what they themselves want.
I don’t believe in just handing out amnesty- at least any kind of “forgiveness” that would lead to citizenship- to the 11 million or so undocumented immigrations. I believe, though, that current DACA recipients should be given a more permanent status that can ultimately lead to citizenship. The DACA recipient’s path to citizenship does not necessarily have to follow the traditional path to citizenship- as in adjustment of status>meet 5-year continuous residence requirement-apply for citizenship- as this status (DACA) would be phased out eventually.
Aside from the high possibility of the Biden administration being hamstrung by the GOP, the INA does not define the term “undocumented”, which can, in and of itself, create more unintended problems than it solves. Are asylum applicants (NOT asylees) considered undocumented immigrants? Are TPS recipients undocumented immigrants? Who exactly are undocumented immigrants? To put it differently, the Biden administration would need to navigate (successfully) the GOP’s roadblocks to any immigration bill or action that remotely resembles a so-called immigration amnesty, and the legal provisions in the INA or other legal challenges. The foregoing makes sense as if it were that easy, the Trump administration would have made greater inroads with their anti-immigration agenda- the opposite of the Biden administration agenda, essentially.
“Amnesty”, according to the Merriam-Webster, is “the act of an authority (such as a government) by which pardon is granted to a large group of individuals.” Clearly, then, my biggest concern with so-called amnesty is granting legal status, or a pathway to citizenship, to certain immigrants who decided to flout immigration laws because they simply can, and completely ignoring immigrants who follow(ed) the law, sometimes to a T, and are stuck for years in immigration bottlenecks- many of which (the bottlenecks) are deliberate and thus used for political expediency or fodder.
Moreover, even if there are no headwinds, legal or otherwise, does the government have the wherewithal to process applications for amnesty for over 11 million people? Even if the government does have the resources, would such an endeavor unintentionally impede the progress for those who are already in the “system”, or those who, by way of their legal right, attempt to apply for the benefit(s) they seek?
I think that Biden and his administration should be more practical and strategic, or make attempts at more realistic achievements. In any event, whatever the new administration attempts will be met with fierce opposition by the GOP- and possibly some segment of the U.S. population. This may ultimately lead to more divisiveness and a failure to achieve anything with regard to immigration.
Some, not all, of the things on my immigration wish list are as follows:
-Focus on a bipartisan deal to get DACA recipients some kind of permanent status (polls show that most Americans are in favor of this)
-Create a points-based immigration system, like those used in most developed countries. This points system would not discriminate and would be extended to those 11 million undocumented immigrants who are hiding in the shadows. For instance, the immigrant could get points for language ability, familial ties, U.S. education or professional experience, the amount of time living in the U.S., how much taxes the applicant has paid, and whether or not the applicant has paid taxes, job offers from U.S. companies (jobs that U.S citizens and people with LPR status don’t want, or the employer demonstrated that s/he can’t find an American, Permanent Resident, or those with employment authorization to do the job), the amount of money or savings the applicant has to take care of him/herself so s/he doesn’t become a burden (financially) on the government, the applicant’s age, training or skills in areas or jobs that the U.S. needs or lacks sufficient human resources, etc. Let’s say that the applicant- and anyone can apply, including those outside of the U.S. (barring certain criminal convictions, obviously)- gets 70/100, the minimum amount needed, for example, the person, despite his/her immigration status, should be able to submit an application for LPR. This would be something that DACA and TPS recipients, asylum applicants, etc. could also use, though it wouldn’t be limited to people in the U.S.
-The current asylum system- one that is seemingly more punitive than humanitarian- needs a complete overhaul. Asylum applications (or interviews or hearings) should ONLY be defensive when the applicant is REFERRED to court/the applicant decides to, at his or her volition, appeal the asylum office’s denial. This current system treats asylums applicants differently- those who apply at the border or at an airport are forced to make defensive asylum applications, notwithstanding the difficulties the applicant experiences in securing legal advice, supporting or corroborating evidence, and the difficulty that the applicant experiences with effectively/comfortably practicing/preparing for their court hearing, etc. Aside from that, confining asylum applicants, as if they are criminals, adds to the applicant’s trauma. Moreover, what would be the rationale for detaining and imprisoning one set of asylum applicants, and forcing them to do a defensive asylum application, and allowing another set to enjoy their freedom and do an affirmative asylum application? Are their asylum claims different?
-I also agree with Jason that EADs, for pending cases, should be automatically extended and sent to the applicant who has a case pending a decision. As well, “Green Cards” (“GC”), for applicants who have lived in the U.S. as asylees/refugees for at least 1 year, don’t need an application- nor does it need a physical presence requirement so long has you successfully have the status- asylum or refugee status- for at least 1 year.
– Remove the fee for asylum applications
-Change back some of the fee increases t
-Remove the 1-year deadline for asylum applications (makes absolutely no sense. If you qualify for asylum, you should be granted. It shouldn’t be so temporal or restricted to time)
– Go back to FIFO (I am a staunch defender of FIFO and strongly opposed to LIFO. it’s arguably immoral and illegal to use FIFO when processing asylum claims. It’s also obviously unfair)
All of these are good points, as usual. I plan to write a lot more about this, but one over-arching concern I have is that the Biden Administration may over-play its hand with regard to immigration. I think Trump lost in 2020 because of his incompetence and divisiveness; not because of his anti-immigration policies. The Democrats need to tread carefully when it comes to amnesty (or whatever) for millions of people. Otherwise, we will face a very big backlash that may result in worse than Trump. Not to say that we should not try to move forward, but we have to do it democratically and in a bi-partisan way, and we have to try to convince some people who are not pro-immigrant. I think starting with “easy” cases like DACA makes sense, and then coming up with a long term plan that satisfies a majority of Americans. Without that, any “grand bargain” is doomed to fail. Take care, Jason
All- please forgive my atrocious grammar in my previous comment. I was attempting to multitask at work. Failed miserably.
Jason- I completely agree with you. Dems also need to bear in mind that mid-terms are just around the corner. And, they can’t afford to lose more seats (their congressional and senatorial performances a couple days ago were less than impressive, to say the least).They seemingly got the presidency; they now need to play it safely. Personally, I like bipartisanship as all opinions are taken into consideration and therefore more can be done.
A few weeks ago, though, I only cared about the hardcore left and the hardcore left’s agenda and ideologies. I have been doing some hard thinking, however, and I am beginning to accept the idea that a centrist- or a “middle-of-the-roader” (or a moderate)-has a better chance of getting things done. This is just the reality, and we have to work with what we have right now. Hopefully the U.S. will become a little bit more “liberal” over the next decade or so.
I have this same internal debate, but at this point, I view the main problem as the self-destruction of the country, and I view the solution as restoring competency and normalcy to the government. Many hard core Trump people will not be convinced, and will never be. Others cannot be won over by a moderate approach (which argues in favor of pushing as many policies through as possible, just like Trump has done and continues to do). However, my thought is that if more people can be brought back to a more rationale moderate place, that may be enough to avoid a future Trump (or worse), and so I think middle-of-the-road policies are what is most needed now, including on immigration. I guess I think now is the time to stop the ship from sinking and we will worry about getting to the destination once things are a bit more stable. Take care, Jason
Jason, it is all about politics. If they do not become citizens, they will never be able to vote for democrats.
The Republicans would rather bully their way through politics than apply strategy to establish a fair share of these future votes.
I for one, I lean conservative but no matter how conservative I am, the hostility would always drive my votes to the party that welcomed me with no judgment.
I think this is the Republican analysis (immigrants = Democrats), but Trump proved it wrong, as if we didn’t know already. There are many immigrant groups (Cubans, Venezuelans, Soviet Jews, Christian Vietnamese) that reliable vote Republican, at least for the first generation or two. The demographics of our country are changing, and will continue to change even with more restrictive immigration policies. The question is whether our country can survive this change. Republicans seem to think it cannot. For me, I think it easily can, and we will be a better country for it. Take care, Jason
Now, before anyone misunderstands me here, being conservative does not mean that I judge anyone. They are my personal values.
“In 2015, the IRS collected $23.6 billion from 4.4 million workers without Social Security numbers–many of whom were undocumented. Biden will aggressively advocate for legislation that creates a clear roadmap to legal status and citizenship for unauthorized immigrants who register, are up-to-date on their taxes, and have passed a background check.” *copied from Biden’s website)He is not proposing a blanket amnesty.
Whether he gives them a part to citizenship or not, they are here anyways.
Wouldn’t it be more economically advantageous to have them background checked, and out of the shadows?
I had a guy come fix something in my house ,and made $220 in the 4 hours it took him to do the job.He has a car that he purchased from buy here pay here.
When I asked why he did that, because the car payments would not be reported to the credit bureaus, he told me that he did not have SSN. I contracted him from one of the popular handyman sites . If he did not tell me he did not have SSN, I would never have known his immigration status. He has lived in the US for 5 years, and has US citizen kids.
If they are here already, that may be a good use of the public charge rule, so they are not burdening the country. Give them a 5 year probation period of not requesting public assistance to be eligible to apply for citizenship. Some of them may never even qualify for public assistance because they make middle class wages.
Which would be cheaper for the USA, deporting them on tax payers money, having them stay in the shadows and not pay taxes, or have them pay taxes . They live here-emphasis.
Do a sin no more, and reform the immigration system, and free up federal agents to tighten the loopholes to reduce the problem, because amnesty will sure be an incentive for more people to come.
Now on a selfish note: Biden should first give asylum seekers who are stuck in limbo for 5+ years a path to citizenship. We followed the law, and are victims of a cruel immigration system..If you are going to consider a path to citizenship to people who did not follow the law, what about people who did? They should remain in limbo for years to come?
Unfortunately, we have not heard much from the Biden team about affirmative asylum. We have heard that they hope to double the number of Immigration Judges. Frankly, I think they need to be more creative about how they handle these cases and come up with new approaches (I’ve written about some and hope to post more about this in the coming months). I guess they can throw money at the problem, but I am not sure how much money there is (remember when USCIS was about to go out of business?). As for the “amnesty,” I doubt it will work, but if it does, my worry is that Biden will over play his hand my bigger and cause a big backlash (and perhaps Trump 2.0). Anyway, I guess we will see what the new Administration proposes and go from there. Take care, Jason
Great points, Tina and Jason!
Hello Jason,
Please I need your advice, I lost my mom last week Thursday, I’m the first born, I saw her last in 2015 when she followed me to the airport in my home country. We talked on phone on Tuesday the 17th November and I was called that she passed away on the 19th November without any sickness. My question – Is there any protection I can get from the USA if want to travel to home country for her burial. I received asylum approval last year July. Application for change of status still pending. The case does not have anything to do with the home country government. Travel document is also pending. Thanks for your quick response.
So sorry for your loss dear..
I am very sorry for your loss. If you return to the home country, you do risk having trouble with the US government when you return. I have had asylees travel home for important reasons, and then return to the US with no trouble. But there is some risk. If (as you say) you do not fear the home government, the risk is lower. If you return, try to keep the trip short and be prepared to explain the reason for the return travel (maybe have evidence of your mother’s passing). Also, be prepared to explain how you stayed safe while you were home. You may need to explain all this at the border when you return, at any green card interview, and at your citizenship interview, so keep that in mind. Also, if you are interested, I wrote more on this topic on January 6, 2016 – maybe that would help. Take care, Jason
hi there i am an asylee i was referred to the immigration court just because my asylum case does not fit in those five or six categories on the basis of which asylum is granted .
i was working for a life saving department as a first responder also conducting anti terrorists trainings and because of the member of that particular department my life is in danger i was previously tortured and attacked but i survived and flew here to US and applied for asylum i was interviewed after 4 years i had all my evidences and proofs but for only reason my case was referred to the immigration court
You have to fit your case into one of the five protected categories; otherwise, you cannot qualify for asylum. Maybe you could argue that you are targeted based on your “imputed” political opinion, meaning that the bad guys think you have a political opinion (such “pro-government” or “pro-Western”). Regardless, unless you find a way to fit your case into a protected category, you will lose. You might still be able to get Torture Convention relief, but that is not as good as asylum. If you are in court, you should talk to a lawyer and the lawyer should be able to help frame your case so that you can qualify for asylum. Take care, Jason
Hi Jason,
I live in DMV area. I have sent my EAD card renewal request to the Dallas service center.
I found it in their websites
USCIS Dallas Lockbox
For U.S. Postal Service (USPS):
USCIS
Attn: I-765
P.O. Box 650888
Dallas, TX 75265-0888
I was not sure where to send them. When I applied my previous EAD card, I sent them to the same address and it worked. I am not sure now if it is going to work.
Question
Is it the right address one should send for the renewal of EAD card ?
Best regards
If you are applying based on asylum pending (c-8), that looks like the correct address. Take care, Jason
Hi Jason,
Thanks for your blog! I got my Green Card though asylum. If I renew my home country passport and use it for traveling to other countries (not to my home country), will there be any problem on my return back to US or when in future I apply for citizenship?
Probably not, but it depends on the case. If you fear harm from your home government, and that same government renews your passport, you may need to explain why they agreed to renew the passport and it could cast doubt on whether your asylum claim was true. For this reason, it is better to travel using a Refugee Travel Document (form I-131, available at http://www.uscis.gov). That said, I have had clients do exactly what you describe and no one (so far) has had any problems. Take care, Jason
Contracts ! Which state did you apply from and what year ?
Hi Jason,
I’m an Asylee waiting for my Green Card from last one year and my husband is waiting for 2 years. We both applied at TSC but now we are planning to buy house and move to Nebraska service center jurisdiction. We are worried that if we change the address in USCiS then our application will be moved to a new jurisdiction and it will add more processing time and I heard sometimes while transferring files to another uscis jurisdiction, the files may be lost. We still gonna have access to the old mail box address.
What are you thoughts and suggestions?
Is it better to keep old address or update new address?
Thank you in advance and we
I doubt there will be any problems or delay caused by moving, and you are required to change your address if you move. For these reasons, I think you are better off just changing the address. You can do that online using form AR-11, available at http://www.uscis.gov. When this was done using a paper form, we would sometimes see problems such as you are describing, but I have not seen such issues since the form became available to file online. In any case, I do not know that moving will cause your cases to move – they may just be processed where they are, but the notice will be sent to the new address and any interview will take place at the new location. Take care, Jason
Jason, have you ever experienced situations when the client is angry at you because of the long waiting interview times? My friend had an altercation with his lawyer and blamed him that he did not do enough to advance his asylum case. He has been waiting for an interview since 2017. I said, man, you should be more patient because many people are waiting too. Unless you have good reasons to be advanced, you must wait.
Sure – and clients have left me for other lawyers because they want the case to move faster. Unfortunately, there is only so much a lawyer can do and some client do not understand that, or have expectations that cannot easily be met. For this reason, I try to explain the situation before anyone hires me, but sometimes people hear only want they want to hear. Take care, Jason
Hi Jason and asylum community friends.
I’m an asylee and I applied for a travel document five months ago. Fingerprints were taken two weeks ago and I have an urgent situation to leave the States without having the RTD in hand yet. So, I have to use my home country passport during travels and I should wait for my RTD to be issued then will be sent to me overseas to use it for coming back to the States.
My questions are, will it work? will there be any consequences regarding my status in the future? Does anyone have any idea about a better plan or anyone left the States without having RTD in hand?
Thanks in advance for any reply.
Assuming you can get the RTD after you leave, the plan should be fine. The problem is that if something goes wrong with the RTD, you will need to figure out what to do (probably contact the US embassy and see how they can help). This process is pretty regular for GC-holders seeking a Re-Entry Permit – such people often collect the document at the US embassy. However, these people already have a GC, and so if something goes wrong, they can return to the US. In your case, if the RTD arrives in the US, I would have them scan a copy to you overseas before they send it. That way, if you don’t get the original, at least you have a copy to show to the US embassy and that will likely make things easier. Take care, Jason
Taking into consideration how hectic it can be from filing affirmatively to recieving a decision from USCIS. then to have your case unfortunately going to IJ, BIA and or maybe even further seem be like a mental torture. Majority of Asylum seekers seems to have 1 of the most crucial pathway to LPR or even citizenship. We are human beings too😞
Appreciate you as always Jason for all this free essential Knowledge.
Is it a panel that decides, or a single judge? If panel, majority and not unanimity required, correct?
Can you present a new legal argument to the BIA, or must you stay within the confines of your argument to the IJ? Does DHS get to submit its own documents to counter your appeal?
Will the new administration be able to undo the current composition of the BIA?
Usually one judge decides a BIA case, but if they are reversing the decision of the IJ, they use a three judge panel and two must agree (sometimes, you see a dissenting or concurring opinion). You can present any argument you want to the BIA, but if it has not been presented to the judge, it may be denied for that reason alone. DHS does get to submit a brief, but often they do not bother. A Administration could presumably reassign any Board Members that they do not like – this happened in 2002 and also, in a less obvious way, during the Trump Administration. Take care, Jason