The Department of Homeland Security (the prosecutor in Immigration Court) has been implementing new rules related to its “enforcement priorities.” These rules apply to people who have cases pending in Immigration Court, meaning that the U.S. government is trying to deport them. Not surprisingly, the government wants to deport some people more than others. Under the new rules, cases that are not a priority for removal may be dismissed as a matter of prosecutorial discretion or PD. When that happens, the government has stopped the removal/deportation process and the noncitizen is able to remain in the United States.
Here, we’ll talk about who might qualify for PD, the different types of PD, and how to request PD from DHS.
Before we get to these questions, let’s look at why DHS is offering PD in the first place. According to DHS, the appropriate use of PD “can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance DHS’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence.” Currently, there are almost 1.8 million noncitizens in Immigration Court. Some are a higher priority for deportation than others, and DHS hopes to use PD to set aside less pressing cases in order to focus resources on people deemed a priority for removal.
Who qualifies for PD? There are three categories of noncitizens considered a priority for removal: Threats to National Security, Threats to Public Safety, and Threats to Border Security. People who are (or may be) terrorists or spies, criminals, and people who try to enter the U.S. illegally are all examples of enforcement priorities.
For people with criminal issues, DHS considers a number of aggravating and mitigating factors when deciding whether to offer PD. These include the type of crime and how serious it was, harm to the victim(s), the sentence imposed, and whether the crime involved violence. In terms of mitigating factors, DHS considers the age of the noncitizen, how long he lived in the United States, mental health issues, family and community ties, the impact of the person’s removal on others, military or other public service, and whether the person faces danger in the home country.
A “threat to border security” refers to people who entered or attempted to enter the U.S. unlawfully on or after November 1, 2020. This category also applies to people who apply for admission to the United States but who are inadmissible, including people who are inadmissible due to criminal issues. DHS also considers aggravating factors–including the use of fraudulent documents, making a fake claim for asylum or other immigration benefit, and involvement in alien smuggling–and mitigating factors, including flight from persecution, age, mental health issues, and ties to the U.S.
If you are not an enforcement priority, you should have a reasonable chance to obtain PD. And sometimes, DHS will move to dismiss your case whether you like it or not (you can try to oppose this, especially in an asylum case, but DHS often gets what it wants). Remember that the “D” in PD stands for “discretion,” meaning that DHS can agree to PD or not–it is totally up to them–and there is not much you can do about it. The PD memo offers more guidance about when DHS should favorably exercise discretion, but in the end, it is their decision.
What is PD? Assuming DHS offers PD, there are several ways the Immigration Court case can end.
The outcome most favored by DHS–and prioritized in the PD memo–is “dismissal.” Under this option, the case is dismissed or terminated and the person is no longer in removal proceedings. The benefit here is that no one is trying to deport you and you can remain in the U.S. indefinitely (unless DHS initiates a new case against you by serving a new Notice to Appear). If you are eligible to obtain status in the U.S. some other way (most commonly, through marriage to a U.S. citizen), you can pursue that option. Also, for those who enjoy running in circles, if your case in court is dismissed, you could try filing affirmatively for asylum (you would likely need to file the new I-589 at the Atlanta Vetting Center – see these Special Instructions).
One big down side of dismissal is that if you have a pending application for relief (such as asylum) and you have an Employment Authorization Document (“EAD”) based on that application, your EAD will become invalid when the case is dismissed and you will not be able to renew your EAD in the future. This means that you will not be able to work legally in the U.S. and you may not be able to obtain a driver’s license (unless you have some other way to obtain an EAD). In addition, if you accept PD, you lose your opportunity to receive a decision on the merits of your case, meaning you will not be able to try to obtain permanent status here. For asylum seekers, this can be a difficult choice: Accept PD and you will not be deported, but you will not get a final decision in your case and you will be left in limbo. Each person will have to make their own decision here, depending on your goals and the strength of your asylum case.
There are possible alternatives to dismissal. For example, PD could result in “administrative closure,” where the case remains “alive” but is removed from the court’s schedule. This option is strongly disfavored by DHS (and by many judges), but if you receive administrative closure, you can continue to renew an asylum-pending EAD, since the case is technically still pending. On the down side, it is easier to re-start the case to try to deport you.
Other forms of PD include stipulating to relief, where DHS agrees that you should be granted asylum (or some other immigration benefit), and continuances, where your case is delayed for a period of time.
Also mentioned in the memo is the possibility of a joint motion to reopen. This is used when a person has already been ordered deported, but remains in the U.S. and has some avenue for relief available. For example, I had a client who missed a hearing and was ordered deported in 2008. We asked–and DHS agreed–to reopen the case so this person could apply for status based on marriage to a U.S. citizen. We are still waiting (and hoping) for the judge to reopen the case and then dismiss the case without a deportation order. If that happens, the client will be eligible to obtain a Green Card based on marriage.
How to request PD? Normally, your lawyer would request PD by emailing DHS, but you can request PD yourself, without a lawyer. Each local DHS office has an email address dedicated to PD requests. As far as I can tell, these email addresses are not publicly available, but if you call your local office and ask the receptionist, they should give you that information. My experience has been that DHS is responsive to email requests, though sometimes it takes a few days, and they do not always agree to PD. DHS has a helpful website that breaks down the requirements for PD and offers guidance about how to apply.
PD is certainly not for everyone. Most of my clients prefer to move forward with their cases. But for some people, especially those with alternative forms of relief or very weak cases, PD may be the best option.
[…] probably expect lower quality decisions. Finally, the government will probably continue to rely on prosecutorial discretion to try to reduce the number of pending cases, and so PD should remain an option through […]
Hi there.
I had a credible fear interview, which was rendered valid by the immigration office. Now I have an individual hearing before the immigration judge. Is there still a chance that I could be denied asylum? and what should I do to prevent that?
Thanks.
You can be denied, and you still need to prepare and prove your case. Hopefully, you can get a lawyer to help you, but you should at least fill the form I-589 and submit evidence. There is a lot to do, and it is definitely helpful to find a lawyer. If you cannot afford a lawyer, I did a post with links to non-profit organizations and maybe you can try one of those. The post is from September 22, 2016. Take care, Jason
Dear Mr. Dzubow,
I try to read your posts at the asylumist blog. It is very knowledgeable and informative. I want to thank you for what you are doing.
I live in Los Angeles and I have a very confusing situation at the moment. I came to US in September, 2017 on a B2 tourist visa and applied for asylum on December, 2017. My case was dismissed without prejudice and was granted prosecutorial discretion by the Immigration Judge on February, 2023.
I have done some translation work. However, it wasn’t my regular job but I did whenever I could. I heard about the EB3 visa that I can apply for. I want to know if that is possible in my case.
I would be forever grateful if you can help me. Thank you.
Regards
Arafat Shuvo
You would really need to have a lawyer look at this for you, as it depends on the specifics of the case. However, assuming you could qualify for an EB-3 and have a company to sponsor you, I am not sure how you would get your GC. It is very unlikely that you can get it without leaving the US given that you are now out of status (since February 2023 when the court case was dismissed). There are exceptions to this general rule, but they are rare, and you would need to talk to a lawyer. Also, to get the GC overseas will not be easy, since you should not go to your home country (since you had an asylum case) and since you are now have about 5 months of unlawful presence here (unless you have some other application pending, you have been unlawfully here since the court case was dismissed). Once you have accrued 180 days of unlawful presence, if you leave the US, you are barred from returning for 3 years and of you stay here illegally for 1 year and then leave, you are barred from returning for 10 years. There are exceptions to these rules, and so it is worth talking about the specifics with a lawyer. However, these exceptions are rare and my guess is that you would not be able to get a GC based on EB-3, but you never know until you look into it more specifically. I wrote more about these issues on August 28, 2018 and September 6, 2018, if you are interested. Take care, Jason
[…] First, to be clear, the only asylum cases that can be withdrawn are those at the Asylum Office. If you have a case in Immigration Court, you can withdraw your asylum application, but this will likely result in an order of removal (deportation) unless you have some alternate form of relief (or if you receive prosecutorial discretion). […]
Good Morning Jason. Thank you for all the help. Do you know if the Immigration judges are still giving PD if requested. Or can someone request it before their individual hearing. Thank you
They can – and it is best to inquire with DHS (the prosecutor) in advance, though often they will not respond until close to the final court date (or on the final court date). Take care, Jason
Thanks a Million
Hello, my final is on 06/2023. My questions are,
1. How do I know which attorney prosecutor has my case?
2. Do they have time to prepare for the hearing just like us? Or they receiving the case closer to the final?
3. How do they ask questions?
Thank you.
1 – That is not assigned until very shortly before the hearing. 2 – I think they have some time, but they often do not look at the file until very close to the hearing. 3 – Yes. I did a post on September 25, 2019 that discusses the Individual Hearing. Take care, Jason
I am waiting for the master hearing scheduled in March 2023. My i130 based on marriage has been approved. I would like to request a PD from the judge and then submit i485 to USCIS. Here are my questions:
1. Do I need to completely close my asylum case in order to submit i485 to USCIS? or I can postpone or put it aside the asylum case and close it after the approval of i485 from USCIS?
2. Can I request an early court meeting to determine the i485? Do I still need go through all procedure of the master hearing and individual hearing?
3. Will I have a high risk to get caught by ICE in any of the above situations in the future?
I really appreciate your advices based on time efficiency and economy.
You first request PD from DHS and if they agree, you and DHS file a request to close the case with the judge. In terms of your questions: 1 – To file the I-485, you need to terminate the court case; you cannot get the GC from USCIS until the court case is closed. Note that once you terminate the case, any work permit that you have based on asylum pending is automatically terminated. 2 – If DHS agrees, you can file any time to terminate the case; you do not have to wait for the Master Calendar Hearing. 3 – If DHS agrees to PD, the case will close and so ICE is no longer trying to deport you. Unless you commit a crime (or a new Administration changes the rules), you should be fine.
If I don’t want to close the asylum case, and keep applying for i485 on the court, would i still need to wait till the scheduled master hearing in March 2023 and then pick a time for individual hearing for marriage case? Or I could ask the judge to schedule an earlier time to adjudicate the marriage case? I would like to know how the marriage case is processed on the court. Thank you very much.
You can ask the judge for an earlier date – I wrote about that on April 20, 2017. Many judges will not allow this and will close the case, but you can try to keep the case with the judge. It is too complicated to explain the entire process here and also, the process may vary depending on your case, and so you should talk to a lawyer about this. You do have to pay for the GC through USCIS and give the receipt to the judge, along with all the evidence and forms for the case, and so if you plan to do the case in court, you need to pay the I-485 fee well in advance, so there is time to get the receipt from USCIS, which can be slow. Google “pre-order instructions for immigration court” and that will give you an idea about the fee, but talk to a lawyer first to make sure this is the best option. Take care, Jason
If I close the asylum case and apply for i485 with USCIS, would I still be eligible for asylum again in the future if anything happened to my marriage? Would it be like the asylum I applied before and go through all the processes again, USCIS Interview, and then NTA? If it would affect my credibility and the rate of approval if I need to reapply for asylum in the future? By the way, if a US Citizen could help parents who have a pending case in the court to adjust the status? I really appreciate for answering so many legal questions.
If you close a case and then can’t get your GC for some reason, you may have a difficult time getting asylum, due to the one year bar, among other issues (I wrote about the one-year bar on January 18, 2018). If you are worried about that, you might want to talk it over with a lawyer to see how best to proceed, and whether closing the court case is a good idea. A US citizen who is over 21 years old can file for a parent to get a GC – I wrote about the process for that on August 6, 2018, but again, you may want to talk to a lawyer to make sure they are eligible to get a GC, as it depends on the specifics of the case. Take care, Jason
Hi Jason,
The government Attorney would like to address the PD on the master hearing date scheduled this year.
1. There is still a possibility that the government attorney refuse to grant PD, right? what would be my options if it happened?
2. I would like to know how to prepare for master hearing? Do i need to go over all the details happened at the USCIS interview and all files submitted to the USCIS and the court?
3. Generally, wheather you prepare an FBI fingerprint-based background check with a PD request or not for your clients?
Thank you very much.
1 – That is possible, usually for people with criminal issues or prior deportation orders. If that happens, you can still ask the judge to dismiss (over the objection of DHS), though usually this will not work. In that case, you just have to present your applications for relief to the judge and try to win the case. 2 – I did a post about the Master Hearing on March 7, 2018 – maybe that would help. 3 – We just file for biometrics with USCIS and this has always been enough. If you did not do a biometrics appointment for the asylum case at the asylum office, you can Google “pre-hearing instructions in immigration court” and follow those to get an appointment. Generally, DHS will not agree to PD until you do the biometrics. Take care, Jason
Hi, how long takes to get decision After submitting a Pd request?
Thank you
It is not predictable, but I would say that if you do not hear from them in a month, contact them again. Take care, Jason
Hi Jason,
My wife and I filed for I-130 application since January of 2021 and it has been pending ever since at Texas service center any idea how long it takes their timeline isn’t helpful at all.
Thank you
In my experience, if a US citizen is filing for an immediate relative, such as a spouse, it normally takes less than a year. Take care, Jason
It has been a year and half anything we can do to check on the status other than online service? Or to speed up the process?
Thanks
There is a link under Resources called USCIS Help – you can make an inquiry about the case if you follow that link. You can also try to call: 800-375-5283. My guess is that these actions will not help, but aside from wasting your time, there is no harm in trying. Take care, Jason
I applied for renewal of my EAD in June 2021. I recieced approval letter indivating my EAD was approved. I checked the status of my card on USCIS, and it says that the card was delivered. I checked the status at uspost office, which says the item was delivered. But the item was not delivered to my mail box. What should I do on this case? I have waited for 2 weeks now after it says delivered. I NEES YOUR HELP.
Ugh – this is a fairly common problem for some reason. You can make an online request to re-deliver the card here: https://egov.uscis.gov/e-request/displayNDCForm.do?sroPageType=ndc&entryPoint=init. But if USCIS thinks the card was delivered and received by you, that may not work. You might also try calling USCIS at 800-375-5283 to see whether you can learn more, though it is difficult to reach a human being to help you. Maybe if your mailbox is shared by others, you can ask the neighbors if they have any ideas. If none of this works, I think you would need to re-apply for a new EAD, but of course, that is expensive and takes a long time. Hopefully, calling or the e-request will help. Good luck, Jason
Hi Mr. Jason
So I was waiting for the master hearing but few days ago the DHS offered to dismiss the case and my lawyer were able to negotiate with them and they agreed to file a joint motion to stipulate to grant asylum. And last week the judge granted the motion and the order says: Asylum under INA 208 is granted. Does that mean I been granted asylum and now I can file for the green card after a year?
Thanks in advance
It sounds like it – but you should confirm with your lawyer. That is a good result so Congratulations! We have post from May 16, 2018 and December 15, 2021 that may be useful. Take care, Jason
Mohamed, may I ask which court was your case in? What date was MCH scheduled? I will appreciate your reply. Thanks
Congratulations Mohamed, would you please tell us which office location did this happened and how many days took from the time you got Master Hearing until they granted your asylum, because I’m in the same procedure in Santa Ana of California, thanks
I’m Egyptian, 36 years, and my daughter 11 years old. Now we are in America by tourist visas. I’m married but I had violence from my husband towards me and my daughter. We are separate since 8 years ago. I and my daughter left him in Egypt and came to the States few days ago, asking for asylum. Do you think my case can be approved. What are the steps I have to go through. Can your office help me?
Talk to a lawyer about the details of the case, as cases based on domestic violence can sometimes be difficult to win. It is certainly possible to win, especially from a country like Egypt, which has many problems. But a lawyer can help with presenting the case in a way that increases the chances for success. If you do not have money for a lawyer, a non-profit that helps women who are victims of domestic violence is Tahirih Justice Center. I believe they are free and you can Google them. Take care, Jason
Hello Jason, I have a question regarding Naturalization application.
I am confused about military and para military being in the same question
Could you please tell me how many questions they are and which one to answer yes if I just got the national mandatory military training.
Thanks,
I can’t really tell you that – I would just answer any question “yes” that you think applies, circle the question, write “see cover letter,” and in the cover letter, explain about your military service. As long as USCIS does not think you are hiding anything (and that your N-400 is consistent with prior forms), you should be fine. Take care, Jason
Anyone on this forum has requested PD? Pls share your experience and advise.
We have requested it and received it a few times. Also, we have been offered it for almost every case in court (we usually decline). One thing to keep in mind – if you get PD and you have a work permit that depends on asylum pending or some other application, the work permit will become invalid when the case ends, so you probably want some alternative relief if you plan to get PD. Take care, Jason
What is administrative closure? Does my EAD expire even I request admin closure for pd request?
Administrative closure means that the case is closed. If you have an EAD based on a pending application, such as an asylum application, the EAD will become invalid once the case is closed. Probably no one will know it is invalid, but it is technically invalid and you will not be able to renew it. Once the case is closed, you may be able to apply for another type of relief (family based green card, asylum, TPS or something else) and maybe that is a way to get a new GC. Take care, Jason
Jason, thanks for explaining. So is there a way to request PD where EAD is valid for all time with option to renewals? Any how court will dismiss case in MCH so how to select an option which at least give option of valid EAD and availability to renew in future?
You would want Administrative Closure and not dismissal. With Admin Closure, the case remains alive so that you can continue to renew the EAD. DHS and courts favor dismissal and they may not agree to Admin Closure, but certainly you can ask about that. Take care, Jason
Hi Jason, I appreciate your efforts in helping us out year in year out. please I really need your view on this my wife renewed her Ead it was returned 4 times stating the amount is inaccurate firstly she paid 485 400 was returned back to her it was rejected that she should pay the whole amount of 485 this happens back and forth . Now it was denied and asked to appeal the denial or file a new one please can she continue to work while we file the appeal coz we have all the supporting documents to prove she actually paid the full amount but was returned to her on the four times. Her Ead has expired. Please can she still continue to work while we appeal the decision?
Larry, sorry to know your hardship with just basic EAD process. My friend these people don’t take us seriously even when you appear for your interview. They just don’t care for asylum seekers.
An EAD renewal for category c-8 (asylum pending) should be $410 (check to “Department of Homeland Security”). An appeal would be a bad idea, since it sounds like you paid the wrong amount and the only purpose of an appeal is where USCIS made a mistake. Of course, they should have clearly told you the correct amount when they rejected the case. Anyway, her option is to file again. If the old EAD is expired, she technically will not qualify for the 540-day automatic extension, since that is only available to people who file a new EAD application before the old EAD expires. However, I bet that once she gets the receipt, USCIS will give her the extension anyway. You will have to check to see what the receipt says once she receives it. Take care, Jason
Hi Jason,
My 73 year old father did his interview about 3.5 years ago and still waiting on decision. I mailed inquiries to Chicago USCIS twice, response is that it’s still under review. I’m considering filling ombudsman form. He has no health insurance and had to go into ER once for an infection last year where he got bills of more than $10,000.
He cannot work (I support him) due to pain in knee and back. He’s been very stressed due to being in limbo and not knowing where/how he’ll spend his last days. I’m wondering whether I can include the hospital bills as “hardship” in the form? I’m worried it could be interpreted as seeking government assistance in the form of Medicaid. Could including those harm his case? Thank you.
Government assistance is not relevant to the asylum analysis and so I think there is no harm in including that. However, I think it is unlikely that the Ombudsman will help. There is no harm in trying. But at this point, if you have inquired several times, his best bet might be a mandamus lawsuit to force them to issue a decision. We wrote about that on October 2, 2018. Take care, Jason
Hello,
I have granted asylum last month and since that time I called Infopass for an I-94 appointment since May-03
Till now I didn’t receive a call from them or anything, My plan was to travel next October for my mother surgery but they are so slow ? I called them today and she said I have to wait only ,
What should I do yo speed it up ,
Thanks
If you can reach them again by phone, you can explain that there is an emergency and you need to travel for the surgery, and so you need the appointment as soon as possible. If the surgery is outside the US, you need a Refugee Travel Document, and you can apply for that with just the court order for proof of your status – use form I-131, available at http://www.uscis.gov. You can try to expedite (and I wrote about expediting in general on January 29, 2020), but if you cannot expedite, it would probably take 8 or 10 months. Take care, Jason
Thanks for responding
Do you mean we can travel and apply for US RTD even before the infopass appointment?
I told them I have to travel and they said there is no emergency appointment for granted asylum people ?
So do you think we can apply for RTD before the appointment? And its safe to travel and come back without I-94 ?
You do not need an appointment for the RTD – you fill the form and send it by mail. If you can get an appointment, maybe USCIS can expedite the RTD at that time. However, if they are telling you that they cannot give you an appointment for the RTD, that may be the answer. In terms of travel outside the US, the I-94 is not enough – you need the RTD (or a Green Card). If you are traveling inside the US, the I-94 should be enough, as long as you have a valid ID and also bring with you proof that your asylum case was approved. Take care, Jason
Hello ,
Sorry I meant can I apply for RTD even if I dont have I-94 ?
I’m talking about Infopass( l-94 appointment that I have to do after granted asylum) this appointment will take long time , So Can I do it later when I come back from overseas?
Thanks
The appointment usually only takes a month or two, though it is very difficult to get an appointment with USCIS. As long as you have proof that asylum was granted, you should be able to apply for an RTD – the judge’s order should be enough. Though usually to get an RTD takes 8 or 10 months. Take care, Jason
Hi AB, here is how I got a copy of mine: I made a FOIA request, through USCIS website. You’ll need to create an account, and it took them 30 days to find a copy of my I94. It looks like they scanned it and sent me a PDF – it works. Hope it helps!
Thank VIk for sharing your experience
Did it work in Social security office ?
I will check my account and I will aplly for Foia today
Haven’t gone to social security just yet. I’ll let you know when I do.
Hi Jason, can you pls explain what happens when a applicant declines the PD in the court?? can the judge give final decision in the same day or the case will be delayed and waiting for the permanent solution in the future??
If DHS offers PD and the applicant declines, the case would normally go forward that day. If you had an affirmative asylum case that was denied and sent to court, you have the option of going forward with your case. If you have a defensive case, DHS can choose to close the case and your court case will end. I suppose you can try to object and maybe the judge can move forward with the case, but I am not sure about that. Take care, Jason
very helpful and prompt response!! thx! just unclear about ‘going forward”…but it looks there is very vague guidance from the court??
“go forward” = that the case would be heard by the judge, you would present evidence and testimony, and the judge would make a decision. Take care, Jason
Hi Jason, my asylum is pending since 2016. Now, my status changed to ” next step is interview “.
1) Is that an implication of my case going forward?
2) How long do you think it will take until they schedule the interview. (I applied in Virginia).
3) what is the Grant/deny rate in Virginia.
4) when I apply I had a lawyer. We never contacted since 2016. If I scheduled for interview, Do he have to represent me based on our 2016 agreement or he has the right to ask new payment?
That message means nothing. I also applied for asylum in 2016. I got same message in 2020, no interview scheduled so far.
1 – Anything is possible, so maybe. 2 – They are generally not interviewing older cases in VA, but you never know, as they do some random stuff. Make sure you have all your evidence and are ready, just in case they do schedule an interview. 3 – I did a post about the different asylum office grant rates on February 5, 2020. As far as I know, that is still the most up-to-date information. 4 – You have to check the agreement and talk to the lawyer. Given that these cases take so long, the lawyer is often not in regular contact with the client, and so if you want that person to be your lawyer, you might reach out to see where things stand. Take care, Jason
Hi Jason,
Hope everything is fine, thank you for your help by answering through your forum.
I have master’s hearing in the second week of August 2022.
How it would be done, I have to attend in court at the court mentioned in the documents or I have to go in my lawyer’s office or I can do it from my house through Webex. It will be great if you explain about the situation.
Looking forward to your response.
Thanks
Jhampa
It depends on the judge, but most judges allow people to attend by Webex. Your lawyer should have this information of the lawyer can get it from the court. If you are allowed to attend by Webex, you should probably have an option to attend from home or from the lawyer’s office, but again, that is a question for your lawyer. Take care, Jason
Jason, I am really considering the consequences of pd, as we must do. after being assigned the pd, and say I have to accept that, does it affect my ability of earning legal work permit from other countries such as Singapore or Hongkong for instance?? can I work in those countries after I leave the US???? thanks!!!!
I am not sure I understand the question, but I have no idea why your ability to work in another country would be affected by whether you received PD in the US. If you think this is an issue, maybe talk to a lawyer in that country. Take care, Jason
I will be glad if it’s not the case,,,,some ppl told me that if asylum case in the us is ever declined then the negative result will affect the visa approval of other developed countries???
I have not heard about that and I doubt it – asylum is confidential and I do not think any other country will know if your case is denied. Take care, Jason
i can understand how much the department would like to reduce the workload, what i cant understand is the timing, considering the current job market, many of the positions cant find enough ppl to fill, but under such conditions, they want to file much less work permit….
Hi jason,, it was very complex law documents,after reading ur article, it looks like :
1) if you entered the country illegally, will face hard deportation.
2) for others, the pd is highly suggested..?
am i correct on this?? how much percentage ppl (those entered with valid visa) are expected to receive pd in the court?? how much percentage applicants in teh court can still have normal decisions like rejection or approval??
thank you as always!!
I am not sure what you mean about people facing a hard deportation – people who entered unlawfully and who are present in the US can file for asylum and try to win their cases. In terms of percentages of people being offered PD or accepting PD, I do not know, but in my cases, DHS is offering PD in almost all court cases where there is not a criminal issue (in other words, all cases where the person is not an enforcement priority). In most cases, we are declining PD as the clients need a more permanent solution (and a work permit). Take care, Jason
Hi jason,
As I checked online, my asylum application case was referred to court. However, I have not received the letter for the court referral. I have tried unsuccessfully to contact the asylum office. I wanted to see how I can get the letters. Thank you in advance for your help.
Best regards,
Sara
If email did not work, you can file a Freedom of Information Act request to get a copy of the whole file. You can follow the link under Resources called FOIA USCIS and that should help. Whether the decision will be there, I do not know, since it does not seem to have been officially issued, but that is the only other option I see in this situation (aside from waiting for a letter from the asylum office). Take care, Jason
Hi Jason,
I want to apply for EAD based on my current asylum approval. This is my first time to apply for an ead based on granted asylum. previosuly i applied for ead based on pending asylum. HOwever, i am confused, What category do I need
to choose for reason for apply 1) intial permission or renewal of permisson?
Thank you for your great help
Jason will respond to you, I saw in the previous comments as this is the first application with a new category (a5), it should be an initial application type. Congrats on asylum approval!
If this is the first EAD based on asylum granted, category a-5, it is an initial application. Take care, Jason
Hi Jason, My brother in law has been asylee since 2019 August. His case was in Texas.
Today he received his green card but it shows that Resident since 06/06/2021
Isn’t that supposed to be since August 2019 (since he has been granted after the interview)? He wants to apply for Citizenship but with this green card date it will be 2 more years delay for him to apply for Citizenship:( What can we do to fix this? Or can he apply citizenship since he is granted? He doesn’t have passport. He wants his passport as soon as possible in order to continue his life.
Jason is going to respond to you soon. The “residence since” date on his GC seems correct to me. The GC is back-dated 1 year from the date of approval- not when he’s granted asylum. It doesn’t matter how many years it takes to get the GC- it will only be back-dated for 1 year from the date of the GC approval. Therefore, for naturalization, he should start counting from the “residence since” date on his GC. When it reaches 5 years- though he can submit the N-400 application 3 months earlier/ 4 years and 9 months- he can apply for citizenship.
The GC is correct – USCIS back dates the card one year; it is does not give you credit for all the time since you were granted asylum. So assuming he meets all the requirements, the soonest he would be eligible to file the N-400 is about March 6, 2026 (5 years after the date on the card, minus 90 days). Take care, Jason
Hi Jason. I am Asylee and GC Holder. My all Family came usa on my i730 form apply. My Elder son not came due to age over 21. He is un married too. I applied for him i130 form some months ago. I think it will take 5,6 years for approval. He not met me since many years and want to visit me on visit visa. Can he apply for Visit visa when i filed i130 for him?Will it effecg on i130 application? Or Visit visa Application?
He can apply for a visitor’s visa (B visa), but it may be more difficult to get if there is an I-130 pending for him. They will not issue a B visa if they think the person has an intention to remain permanently in the US, and when an I-130 is pending, it means the person may want to remain in the US permanently. So he needs good evidence that he plans to return to his country after the visit. If he has that, the embassy may issue the visa. Other types of visas (H1b, L) are not affected by a pending I-130. Maybe talk to a lawyer who helps with non-immigrant visas in order to try to put together the strongest possible application for him. Take care, Jason
Dear Jason & family
My interview was canceled due to unforeseen reason after long wait(family based) while Asylum pending case. But now I have got another notice for interview for asylum case.
Married US citizen & have two children.
tried to contact them but it’s as usual,,,busy, unsuccessful.
Any suggestions, or recommendations that which way should I proceed?
Thank you for your time!
You should attend the interview. Otherwise, they will refer you to Immigration Court (assuming you are out of status). If you are trying to get the GC based on marriage, you can tell them, but generally, they seem not to care and will make you do the interview. For this reason, make sure all your evidence if submitted and you are ready for the interview. Take care, Jason
Good evening,
I have a question. My mom has been waiting for her interview since 2016 and we decided to expedite her case due to worsen health conditions. My question is if she had an interview in 2 weeks, what are the chances that her case will be approved? Recently a family friend expedited their case and after 3 weeks of their interview, they were given date of January 2023 for their decision. What are the chances that my mom case will be approved after the interview?
There is no way to predict the chances for success, as it depends on the case. For most Immigration Court cases, you get a decision on the same day as the Individual Hearing, but if this is an Asylum Office case, a decision can take weeks or months after the interview. Take care, Jason
Has anyone waited more than 3 months for a receipt notice for Application of Employment Document (AED) recently? Please share your experience, being waiting since March 14th.
Receipts are very delayed, but maybe double check that you sent the application to the correct address. If you do not get the receipt soon, you can try calling USCIS (800-375-5283) to see if they know whether it was received. Take care, Jason
Hi Jason!
It’s been a while since I commented. Great article about a not-too-great update.
For asylum-seekers like myself, the case is pending for the past 5 years in court, this is not something that I would want. My case is scheduled for next summer. Can DHS dismiss without approval from the applicant? If not, would the opposition cause more delays in a court case?
This sounds somewhat like an amnesty but not even close. DHS is to “forgive” the asylum seeker and cancel the case like it never happened just doesn’t seem smart to me at all. Especially not offering a grant of some other relief.
Like me and my spouse being in healthcare, paying taxes, no criminal record. They could just offer some sort of amnesty instead of this illogical new rule. My attorney says DHS is pursuing PD in just about all cases on the court’s docket. I believe our case is strong enough to pursue it, I don’t want it to be closed…unless DHS can come up with a better deal, like providing a path for permanent residency for “good immigrants”.
I hope all is well. I think it is not a great option, except for certain applicants with weak cases or who have alternative forms of relief. If your case was referred from the Asylum Office, I believe DHS cannot simply ask the judge to close the case – you can refuse. In other words, if you filed affirmative, you have a right to have your case adjudicated on the merits. My experience is that DHS is not always thrilled when you refuse, but I try to explain why (my client has family members who they need to file for, or my client needs a work permit so he does not starve to death, etc) and I try to be police and grateful for the offer. They are usually fine with my refusal. I do think this is an example of a policy idea someone thought would help, but in practice, it rarely works and is not making anything better. Take care, Jason
Did somebody got interview in new Tampa office? How long it took? Did you receive the answer ? and how long did you wait for answer? . Thank You.
Dear Jason,
Thank you so much from the bottom of my heart for all your articles which are so helpful to all of us. No one else helps as much as you do and we all deeply appreciate You Sir.
Jason, I had my court hearing few months ago and thankfully and praise God the asylum was granted. Now I probably should file for another work permit as I will be able to apply for green card only in one year. I want to save money and apply for work permit by myself, is it true that there is no fee when applying after asylum granted and would you kindly advise of correct address where the application needs to be sent for new category of work permit? Thank you so much Jason. God bless you abundantly.
The first work permit after asylum is grant (category a-5) is free. If you have not done so, you can Google “post order instructions in immigration court” and follow those. That should get you an I-94 and a work permit. Also, we did posts about the benefits of receiving asylum on May 16, 2018 and December 15, 2021 – maybe those would be of interest. Take care, Jason
Hi Jason I would like to thank you for everything you are doing, your articles are soo helpful personally I benefited a lot I had my court hearing on Wednesday and the asylum was granted by the judge I praise God for that and tank you for your help .thanks everyone and keep believe in yourself don’t give up, after 6 years of wanting
Congratulations! We have posts from May 16, 2018 and December 15, 2021 that might be of interest to you. Take care, Jason
Jason, thank you so much, sooooooo appreciate You and will never forget all your help and wisdom to all of us.
Hi Jason,
what happens if uscis doesn’t rollback my green card?
Thanks.
If you got a GC based on asylum and they did not back-date it one year? This is happening a lot. Maybe start by calling USCIS at 800-375-5283 to see what they say. My sense is that it is going to be a lot of trouble to fix and maybe not worth the effort, but that is up to each person to decide for themselves. One thing I do not know – it this an error only with the card, so that you can apply for citizenship 4 years after the GC was received, or do you have to wait the full five years? As this problem seems to be growing, perhaps AILA or an immigration organization will address it in a systematic way and make corrections for everyone. Also, I suppose if USCIS refuses to allow the citizenship application 4 years after the GC is received, you could file a federal lawsuit, since USCIS should have back-dated the card one year. If it comes to that, you would want to talk to a lawyer first to research the likelihood of success. Take care, Jason
Jason, thank you for this. I see a lawsuit brewing over this, too. The number of asylees seeing their green card (GC) not backdated is rapidly growing (remember that asylees must have the GCs backdated by one year, pursuant to law). USCIS should therefore be made to process these mistakes with urgency/a receipt that confirms the applicant’s LPR status should be given to applicant while the error is corrected. This is because there is nothing in the law that says USCIS (to the best of my knowledge), after they’ve made a mistake on your GC, should process your application for naturalization if the “residence since” date doe not agree with the statutory waiting period for naturalization eligibility. Furthermore, I doubt the LPR would win in court because the I-797 (Notice of Action) clearly tells you to reach out to USCIS if there is any error on the document. Thus, the onus falls on the applicant to have the error corrected by the issuing agency.
I want to give USCIS the benefit of the doubt and say that these are honest mistakes; but they are happening too frequently for people to not reasonably believe that some of these are deliberate. I say this because research has unearthed some morally repugnant practices at USCIS- specifically the NYC and Boston USCIS offices. They were basically systematically denying asylum applications (don’t quote me- but I believe these offices had less than 10% approval rates last year), even before an interview was conducted and whether or not the applicants actually qualified for asylum, so they could appease or impress the higherups. Of course, one could also reasonably argue that USCIS workers are overworked and under stress- recipes for making mistakes (this point does make sense- at least on the face of it). But what is clear, though, is that USCIS, even when the agency is understaffed and the workers suffer from burnout, will see EVERY innocent and simple mistake the applicant makes.
I doubt it is deliberate, but if it is, I can’t say I’d be terribly surprised. The GC process should be somewhat automated, and so if it is an asylee adjustment, it should be part of the process that the person has the GC back-dated. Is someone deliberately changing the date? Is it a training issue that some USCIS workers do not know that these cards should be back-dated? When we get FOIA responses, we sometimes get USCIS check lists, where they list the steps in a process. You would think that back-dating the GCs would be part of the process and that there would not be errors. That there are so many mistakes, and that this problems is relatively new is very strange. I do not know what is going on, but certainly I hope USCIS gets its act together or that some agency files a lawsuit. Take care, Jason
Hi Jason,
In addition to USCIS not rolling back an asylee’s green card a year, have you also heard that some USCIS officers are denying N400 applications that were filed on their earliest filing date? I hope someone brings this to the attention of AILA as soon as possible. The law allows filing 90 days before your green card anniversary. There’s even an early filing calculator. I hope the AILA looks into this.
I have not heard about that. Given what a mess USCIS is, I would not be surprised if that happened, but I have heard about any such cases, and we have routinely filed early with no problems (so far). Take care, Jason
Jason, we have to hope that USCIS will get its act together.
Just FYI – You made some comments in response to some obnoxious comments from someone here. I erased his comments and yours were also erased because they were below his. I am going to continue to erase any posts I see from this person. I just wanted to let you know that this “erasure” was not targeted at you – your posts were collateral damage. Take care, Jason
Hello Jason,
Thank you for being helpful to people like us. I am scheduled for a second interview after a very long wait of my asylum decision. The notice i received indicates that the reason for this second interview is to have dependents appear for biometric verification and follow-up questions for me. From your experience, should my wife be prepared to answer any questions in reference to my application? And what are the second interviews generally all about? How would you advise me to prepare myself? Thank you for your time
In most cases, they do not have any substantive questions for the dependents – they only ask the “bar” question, such as: Are you a criminal? Are you a terrorist? etc. They can ask dependents about the case, though, if they want and so it would not hurt for your spouse to review the case. But if she does not know an answer, she can just explain that she does not know. To prep for the second interview, review what happened at the first interview, and if you had a lawyer who took notes, maybe review those. Otherwise, you should prepare the same as you prepared for the first interview. I did a post about the interview on September 8, 2016 – maybe that would be of interest. Take care, Jason
Thank you for your insight Jason. As usual, you are pretty much appreciated
Hi Jason,
I had an Individual court hearing two years ago, and I applied for a green card in October 2021. I just checked my case, and it says it is ready to be scheduled for an interview.
How often does USCIS schedule an interview after you’ve been granted asylum at the court, and can they ask more questions about the case, or it’s more just as a general interview? How long does these interview usually last?
Thank you so much.
During the Trump years, USCIS created a policy to interview all GC applicants who are filing based on asylum. As far as I know, that policy was never revoked, but the policy was never fully implemented either. So you may or may not get an interview. At least in my experience, they rarely ask questions about the old asylum case, but they could, and so it is best to review the asylum case before your GC interview, so you are ready if they ask. I would say most GC interviews in a case like this take less than 1/2 hour, but it depends on the case and whether there are any issues. Take care, Jason
Thank you, Jason.
Can my credit score affect my eligibility for the green card? I have a lot in debt, and a few banks have filed a lawsuit against me. I will be filing for bankruptcy in a few months, but I wasn’t sure if that can be something that USCIS is worried about? Can they ask me about that during the interview?
Also, not sure if that could be the reason why I am not getting my RTD (it has been 16 months since I applied for it)?
Thank you for everything.
same here…Please chime in, I am worried about this as well…but I can’t seem to find enough income…although I intended to pay.
I do not think your credit score would have any effect on the GC application, especially if you are applying for a GC based on approved asylum. Also, I do not see any way that this could affect the RTD. RTD applications are very slow, but in your case, it seems too slow and outside the posted processing times (which you can see at http://www.uscis.gov). You can make an inquiry with USCIS if you follow the link under Resources called USCIS Help. You can also call USCIS at 800-375-5283. Take care, Jason
thanks~
Like Jason said, I don’t think it would affect the adjustment of status application. But, it could be used against you when you apply for citizenship.
Why is that ? @jamie
Hi, thank you so much for your article, if someone has strong case in court how DHS can dismiss it even the representative dose not accept it and he or she wants the case goes forward?!
I could not find it in the memo, but I think they cannot dismiss a pending asylum case without your consent. I am not certain about that, and we did have an asylum case where DHS filed a motion to terminate and the judge dismissed the case before we even knew that DHS had requested it. I was not pleased, but on the other hand, in this particular case, we had previously asked DHS to dismiss and so that was a good outcome for that client (nevertheless, I would have liked to know about the DHS motion before they filed it). In all of my asylum cases so far, where DHS has offered dismissal, we declined that offer and proceeded with the case, as that is what my clients wanted. Take care, Jason
Jason, thanks for this article. After reading this article my main concern is my work permit. My case is in MCH and if my DHS want to dismiss my case which I don’t want. I want to move forward with my case, if I choose to move forward, do I lose my work permit? Is there anything explained about validity of work permit at different stages for PD approved cases and regular cases?
If the case is not dismissed, you keep the work permit. You only lose that if the case is closed – this causes your asylum application to end, and since you only have the work permit based on the pending asylum case, you lose the work permit. Take care, Jason
So, can you refuse the dismissal and go on with your court hearing?
Is that an option?
I think the rule is that if you filed affirmatively for asylum (meaning you originally filed at the asylum office and were referred to court), you have a right to complete your case in court. If you have a defensive case, where you filed asylum for the first time in court, DHS can dismiss the case and you may not be able to stop them from doing so. Take care, Jason
Hello Jason
Sorry, but I’m very confused, it looks like PD might have many different outcomes .
Please advise how the applicant or the attorney can direct the case to get the best outcome
thank you
There are different outcomes, but generally, DHS only offers you dismissal (meaning the case is terminated and you lose any EAD that was dependent on your case). You can ask DHS for a different outcome, and maybe they will agree, but that is up to them, and generally, in my experience at least, they do not agree to anything except dismissal. Take care, Jason
Hi Jason,
I moved to PA from TX. I was waiting for my individual hearing and applied for a change of venue due to relocation. I completed my master hearing at TX.
1- When the TX immigration court sends my documents to PA immigration court, will I need to take a master hearing at PA immigration court again?
2- Does moving the case takes too long? What is your experience?
Thanks
1 – You will probably have another MCH, but sometimes, they will schedule an Individual. 2 – It varies – sometimes it takes only a few months, but other times, it takes much longer. If there is no progress, you can call the court and ask about the case status. You can find their number if you follow the link under Resources called Immigration Court. Take care, Jason
Nice piece as always.
I want to ask some questions about dismissal. It seems that…once a case is dismissed…there will be no EAD ??? I mean…does this option exist to … encourage the noncitizen to … self-deport ? How can one survive without work authorization ?
Thank you. When the case is dismissed, the work permit becomes invalid. No one will know that and it may not even appear on e-verify. However, technically, once the case is done, the EAD is done and certainly USCIS will not renew it. How the person is to survive without an EAD, the US government does not say. Take care, Jason
Okay,
Thank you~
all true, and remember the driver’s license is valid based on the work permit, so even you dont need to work, you cant drive…