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What is Pending Asylee Status?

One of the most common misconception is that a person who came to the United States in some legal status (let’s say J1, F1 or B) can create a bridge in his/her legal status with an asylum application necessary for a successful employment based application. I have to disappoint all those who believe that pending asylum application provides any “legal” status in the United States. It does not. All it provides is an “authorized stay”, a permission to stay and at some point engage in employment in the United States. “Asylum pending” in fact is not a legal non-immigrant status necessary for effective change or extension of status, or adjustment of status when there is a gap between the priority date, first legal status and I 485 filing date.

So, let’s say Masha came on a F1 visa on January 1, 2020. Masha’s F1 status expired on June 1, 2020. On May 25, 2020 Masha filed for asylum. On January 1, 2022, while Masha’s asylum application was still pending, Masha found an employer ready to file for green card. Masha was under impression that filing for asylum “saved” her “legal status” in the United States. In fact, it did not. For Masha to receive an employment based green card, she would have to leave the United States and go to a consulate… in a country she was asking asylum from! (most likely).

The only “positive” in this scenario is that since Masha’s F1 status expired on June 1, 2020, she did not accumulate unlawful presence from that date until her application is denied (if not granted), and she would not be subject 3/10 year bars of unlawful presence if she has to travel outside the United States.

 

 

On December 26th, 2014, the USCIS Asylum Division began prioritizing asylum applications for interview scheduling as follows:

First, applications that were scheduled for an interview, but the applicant requested a new interview date;
Second, applications filed by children; and
Third, all other pending affirmative asylum applications will be scheduled for interviews in the order they were received, with oldest cases scheduled first.



 

An alien in the United States or at a port of entry who is found to be unable or unwilling to return to his or her country of nationality, or to seek the protection of that country because of persecution or a well-founded fear of persecution. Persecution or the fear thereof must be based on the alien’s race, religion, nationality, membership in a particular social group, or political opinion. For persons with no nationality, the country of nationality is considered to be the country in which the alien last habitually resided. Asylees are eligible to adjust to lawful permanent resident status after one year of continuous presence in the United States. These immigrants are limited to 10,000 adjustments per fiscal year.

 

can take USCIS longer than expected to process some affirmative asylum applications; and defensive asylum cases in Immigration Court can drag on for years. Taking such delays into account, people with pending asylum applications or cases who have been waiting for 150 days or more without a decision are allowed to apply for employment authorization.

You can do this by submitting Form I-765, Application for Employment Authorization along with the receipt notice showing the date when your Form I-589, Application for Asylum and Withholding of Removal was received by either the Immigration Court or USCIS. However, keep in mind that actions that you have taken to delay the process – such as requesting a continuance of a hearing or rescheduling an interview – will “stop the clock” and might add additional days to the time by which you are able to apply for a work permit. (See "How to Apply for a Work Permit While Awaiting an Asylum Decision" for more information.)

Since you are legally authorized to remain in the U.S. while your asylum case is pending, you should be able to attend higher education classes as well, though you might not be eligible for certain internship or work study programs in which students in the U.S. on an F-1 student visa can participate. Also, it will be up to the college or university whether or not to grant you in-state tuition rates or to allow you to take courses for credit.

You can also move to another location within the U.S., but be sure to notify either USCIS or the Immigration Court of your change of address as soon as possible. This may also delay the processing of your application or case. If your case is in Immigration Court, you will also need to file a Motion to Change Venue if you are moving outside the jurisdiction of that Court. You should consult with an immigration attorney to help you do this.


Also, while an applicant for asylum is waiting for his/her interview, it is possible to apply for an advance parole: a permission to travel outside the country and return. Please note that it is still risky to do so, as advance parole does not guarantee an admission back to the United States. Another benefit of pending asylum, is, of course, an employment authorization that an applicant can file for once 150 days elapse form the time he/she filed for asylum. The application, however, will not be granted until 180 days pass from the time the asylum application was accepted by USCIS. Those who are in removal proceedings and have pending asylum applications cannot file for an advance parole, but can file for a work authorization.

 

References:

https://www.uscis.gov/greencard/asylees

https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title08/8tab_02.tpl#0-0-0-11771

https://www.uscis.gov/humanitarian/refugees-asylum/uscis-processing-asylum-cases

https://www.uscis.gov/humanitarian/refugees-asylum/asylum

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartM.html

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1687.html#0-0-0-192

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-194

https://www.uscis.gov/i-589

https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-process

https://www.uscis.gov/humanitarian/refugees-asylum/asylum/types-asylum-decisions

https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states