A lot of prospective clients approach our firm with questions about how to apply for asylum, while they are in the United States in a legal Nonimmigrant Status. Particularly when they are in F-1 Student Status, or when they are working in the United States on an H-1B, for example. When prospective clients ask us about this, they generally have two concerns.
The first concern is that they are afraid that by applying for asylum, that they will lose their current valid Nonimmigrant Status, if they are denied asylum. This is not the case. However, the issue is a little more complex than this, and we will go into this in more detail in this article. The second concern that many of these prospective clients have, is due to the fact that they are aware of the rule that asylum applicants must generally apply for Asylum within one year of entry into the United States. In most cases, these prospective clients have been living in the United States for well over a year, as a student or as a nonimmigrant worker. Luckily, you can still generally apply for asylum, even if you wait longer than a year, as long as you are still in a valid Nonimmigrant Status (such as F-1 Student or H-1B). Even if you are currently out status, as long as you were in a valid status for a long time (such as with an F-1 or an H-1b), you may still be able to apply for asylum. This article will now turn to discussing these concerns.
You will not lose your current valid Nonimmigrant Status by applying for Asylum:
When you apply for Asylum Affirmatively (file the paper application) and you have a valid Nonimmigrant Status, you will not lose that status if you are denied asylum. In the event that you are denied asylum: you will simply continue to hold whatever status you held before you applied (assuming it is still valid and has not expired), along with the authorized period of stay you have remaining for that status type. This is because you never lost your valid nonimmigrant status, when you applied for asylum. Yes, you are considered to be “asylum pending” once USCIS has received your application, but “asylum pending” isn’t actually an immigration status. You can be “asylum pending” while still in a valid nonimmigrant status (such as B-2 Tourist, or F-1 Student), or while not in lawful status (for example, if you apply for asylum after entering the U.S. illegally without inspection). The only good things about “asylum pending” (the first which isn’t relevant to you if you have a valid non-immigrant status still), is that: (1) you don’t get “unlawful presence” counted against you while your asylum application is pending–again only relevant if you´re out of status; and, (2) you are eligible to get a work permit after being “asylum pending” for 180 days (note can apply for this after 150 days).
So let’s say for example, that you are in the United States on a valid tourist visa (B-2 Visa), and you have been authorized to stay in the United States for 6 months on that visa (stamp in passport when you arrived in the country). Then, if you decide during your second month of being in the U.S. (of the 6 authorized months) on that B-2, to apply for Asylum, then that is completely okay. You will be considered to be “asylum pending,” and still considered to also have that B-2 Visa Status. If you are denied for asylum, you will simply have the B-2 Visa Status you had while applying. You will be allowed to stay in the United States without doing anything, until your 6 month authorized period of stay expires. This is because you never lost that B-2 Status by applying for asylum.
Now, however. There are two tricky things here with this, that we must discuss.
(1) The first thing that you have to consider when applying for asylum while in a valid Nonimmigrant Status, is that if you are denied asylum, it will be extremely difficult (if not impossible) for you to seek most Nonimmigrant Visas or Statuses in the United States, in the future. This is even true for extending your Nonimmigrant Status (your B-2 in the example above). Why? This is because, to apply for a Nonimmigrant Visa or Status (except for a couple like the H-1B or the L-1), you will have to prove to the satisfaction of the authorities, that you do not have “immigrant intent.” By applying for asylum previously and getting denied, you told the authorities that you do have immigrant intent. Thus, you would be very unlikely to be able to extend your nonimmigrant status, to change your nonimmigrant status to another one (unless it is one of the exceptions), or pursue a U.S. Nonimmigrant Visa abroad, in the future with a denied asylum application on your record. This simply means that you really need to think hard about whether you truly want asylum, whether you have a strong case, and whether it is worth losing potential eligibility for future Nonimmigrant Visas and Statuses. For most people, it is, since you are applying for asylum to escape persecution; thus, asylum is probably worth everything to you.
The good news for an F-1 Student however, is that if they are admitted to stay in the United States for ¨Duration of Status” (fairly customary for F-1 Students), then they will be permitted to stay in the United States for as long as they can continually maintain student status (which can be years and years)–despite having a denied asylum application. This is because they won’t have to reapply for an F-1, as long as they keep maintaining status. They would also be eligible to pursue their OPT after their degree finishes, and they would also be eligible to apply to adjust status to have an immigrant status (Green Card via family or employment), or a Nonimmigrant Employment Status that permits immigrant intent (like H-1B or L-1A); if they can qualify later.
(2) The second tricky thing that you have to consider when applying for asylum while in a valid Nonimmigrant Status, is the following. If you are denied asylum–and still in valid nonimmigrant status when denied (has not expired), you won’t have the same appeal/reconsideration options available to you, as someone who is denied asylum while “Out of Status.” When you get denied for asylum while still in valid status, there has historically never been a way to get your case reconsidered. You would simply maintain your valid Nonimmigrant Status until it expires. Before you get “denied” for asylum while still in valid status, you should receive what is known as a “Notice of Intent to Deny” (NOID). This letter will let you know in detail why the Asylum Office plans to deny your application for asylum. You will only have 16 days to respond to a NOID (unless you request and get an extension), and you should always respond to a NOID. This is because, you can submit additional evidence and further argue why the asylum office should approve your case for asylum. If you don’t respond within 16 days to the NOID, then it will become a final denial which historically couldn´t be reconsidered and/or appealed.
Now, let’s consider the reconsideration and appeals options available to a person who gets “denied” for asylum, when they are “out of status.” If your nonimmigrant status has expired by the time you hear back from the Asylum Office, and if they decide that they don’t believe you are eligible for asylum (or if the case is too complicated for them also– it seems like sometimes), they will give you a “Notice to Appear” for Removal Proceedings. Yes, this is scary, but this isn’t as bad as it sounds. Why? Because, you will get the opportunity for the Immigration Judge to hear your asylum case, as a case independent of the Asylum Office. Many cases that are referred by Asylum Offices to Immigration Judges, end up getting granted in the end. This is because Immigration Judges are extremely educated on Immigration Law, and they can determine eligibility in many complex asylum cases or close determinations, where Asylum Officers fail to recognize the eligibility or don’t feel comfortable granting it. Also, as part of the Removal Proceedings, you will independently have the opportunity to be considered for similar but distinct forms of relief (such as Withholding of Removal and Protection under the Convention Against Torture). Thus, even if the Immigration Judge rules you aren’t eligible for asylum, they may find you eligible for one of these other forms of relief, that will allow you to legally stay and live and work in the United States. You can’t get your eligibility for these forms of relief evaluated unless you’re in Immigration Court, and you couldn’t historically get yourself into Immigration Court unless you are “denied” for asylum while “Out of Status.”
Even if the Immigration Judge finds you ineligible for asylum and for similar forms of relief, if you are in the Immigration Court system as part of removal proceedings, you can appeal following a denial in Immigration Court. You would start by appealing to the Board of Immigration Appeals, which would can take several months or even longer sometimes; and this whole time you could safely live in the United States. The Board of Immigration Appeals may then grant you asylum, and if they don’t, you may decide it’s prudent or desirable to appeal up to the higher courts (such as the United States Courts of Appeals). Appeals at this level are trickier, and it becomes harder for the asylum seeker to stay in the United States during the appeal, but it is not impossible to pull off with good counsel.
Due to all of the better reconsideration and appeals options available to Asylum seekers who apply when out of status, many applicants who are in a valid Nonimmigrant Status, choose to wait to apply for asylum–until their valid status has almost expired. Doing this, can allow you to have all those levels of reconsideration and appeals potentially available to you, for your case, and let you live in the United States for the duration of your Nonimmigrant status before applying. Though if you choose to do this, you should still be mindful of the one year filing deadline (to some extent), as will be explained in the section below. You should also know, that by getting referred to immigration court while not in status, you will miss out on getting a “Notice of Intent to Deny” (NOID) letter. This means you may not have as good of an idea of the weak areas in your asylum matter, going into court. At the same time, you wouldn’t normally even get your asylum case to immigration court, if you had not received your “denial” while out of status.
Before we jump into the one year filing deadline concern–that many asylum applicants in valid Nonimmigrant Statuses have, there is one more thing to acknowledge in the debate about whether to apply for asylum while “in status,” or “out of status.” Very recently, in a June 18th, 2018, USCIS Policy Memorandum, USCIS said that they would consider issuing a Notice to Appear for denied asylum applicants, who were still in valid Nonimmigrant Status. This Notice to Appear would be issued when the applicant falls out of status in the future (their status expires for example), and this request would have to be made in writing, and it is discretionary. This means that USCIS can decide when and when not to allow a Nonimmigrant Status holder who was denied asylum, this benefit. In theory, if they allow the Nonimmigrant Status holder this benefit, then that applicant would get put in Removal Proceedings upon expiration of their status; and they would get the same reconsideration of their asylum case by the Immigration Judge, and the subsequent appeals procedures, as described above and as historically only available to denied “out of status” asylum applicants. This is discretionary, and this policy is so new, that we don’t really know how often USCIS intends to allow denied asylum seekers in lawful status, this privilege. Thus, it should not be relied on in making your decision. However, it is something to consider.
Now, moving on to the second concern that bothers many asylum seekers–who hold valid Nonimmigrant Statuses, when they desire to apply:
Generally, you can apply for asylum, even if you wait longer than a year, as long as you are still in a valid Nonimmigrant Status (such as F-1 Student or H-1B). This is not a guaranteed thing. However, holding a valid nonimmigrant status is legally considered to be grounds for what is known as an “extraordinary circumstance,” that can excuse asylum applicants from the normal rule of applying within one year of their last entry into the United States.
In practice, most people don’t feel the need to apply for asylum when they are safely living in the United States on a valid Nonimmigrant status. It is typically only when that status ends or is about to end, that they begin thinking about their other options and their fear of returning to their home country. The government appreciates this fact, and respects and appreciates the fact that someone wouldn’t feel the urgency to apply for asylum when they are in a valid Nonimmigrant Status. Thus, this tends to be the most commonly granted “extraordinary circumstance” exception to the one year filing deadline, in our experience as immigration attorneys; and it tends to be exception that the government will often just concede or grant without argument, to the asylum applicant that has been in valid status before they apply.
This exception can also be used by someone who applies while out of status (after their nonimmigrant status has expired) after the one year deadline has ended, and the key there will be that the applicant files for asylum within a reasonable time of their valid nonimmigrant status ending.
Again, this is a legal exception to the general one year filing deadline, and it is not automatic. In practice, it may be virtually automatic for someone that has held a valid nonimmigrant status before applying for asylum, but the asylum applicant and their counsel, should always be prepared to make the argument as to why they should have this “extraordinary exception” applied favorably to them. At the same time, you should not be discouraged if you have been living in the U.S. with a valid nonimmigrant status for longer than a year, and want to apply for asylum. Or, if you have been living in the United States for longer than a year, and your nonimmigrant status just recently expired. This is an extremely commonly granted exception, and there are usually easy and good arguments to make about why it should apply to any given asylum applicant.
Applying for asylum, and these procedural issues about when and how best to apply for asylum, can be incredibly difficult to understand. You should not hesitate to get the help of an experienced immigration attorney when making these decisions; as your future life in the United States can depend on it.