Recently, the number of people seeking asylum here dramatically increased, creating backlogs and delays in processing by the United States Citizenship and Immigration Services (USCIS), which processes most asylum applications (except for those already in deportation proceedings).
If you are waiting to hear from USCIS, you are not alone. As of March 2018, USCIS had more than 300,000 open affirmative asylum applications. This number does not include individuals applying for asylum through an immigration court. The backlog in the immigration courts is even worse and longer.
How long you will await a decision on your application depends on when you filed it. Under U.S. immigration law, applicants who applied for asylum on or after April 1, 1997, should have their initial interview within 45 days after filing their application, and get a decision regarding their case within 180 days after filing it, “unless there are exceptional circumstances.” Currently, that is not necessarily the case.
In January 2018, USCIS changed the way in which asylum interviews are scheduled. Specifically, it reintroduced a “priority scheduling” system that was first used in the 1990s. Under this system, the first priority is now given to applicants whose interviews were already scheduled, but were subsequently rescheduled — either or at the applicant’s request or to accommodate USCIS (for example, you are a student and they scheduled your interview during a mandatory state test). The second priority is given to asylum seekers whose applications have been pending for 21 days or less. The scheduling of interviews for “all other pending affirmative asylum applications” is now the agency’s third priority. Within the third priority classification, USCIS says interviews will be scheduled “starting with newer filings and working back towards older filings.” Exceptions may be made, but only in “urgent” circumstances.
Previously people often filed weak or potentially frivolous asylum applications simply to get work authorization during the long wait, since USCIS went from oldest filings to newest. However, since USCIS now adjudicates the newest applications first, there will likely not be a long enough wait for applicants with weaker claims, to bother applying solely to get work authorization. When asylum cases are denied, and the applicant does not have another legal status, they are referred to immigration court for removal proceedings. So applying with a weak or frivolous claim these days, could result in fairly quick rejection and commencement of removal proceedings.
So what can you do while you are waiting with a “pending asylum” application? And just as importantly, what can you not do?
Let’s start by answering the second question — because it is important that you do not make a mistake that could put you at risk for deportation or damage your chances of receiving asylum.
The single most critical thing that you must understand about having a pending asylum application is that it is different from “being in status.” A pending asylum claim gives you permission to be in the United States, but does not give you a legal status or a visa of any kind.
Non-immigrant status is the legal classification given to someone from another country who obtains a visa to come to the United States and is admitted for a specified (usually relatively short) time and purpose. Immigrant status is legal classification given to someone who has a Green Card (a legal/lawful permanent resident or permanent resident). In either case, you are “in status” and have certain legal rights as long as you comply with the associated rules.
As someone with a pending asylum application, you also have certain rights (which we will discuss later), but they are limited in comparison. Now let’s say you originally came here on a student visa (most likely an F-1), you later applied for asylum and you let your F-1 lapse while you were awaiting a decision on your asylum application. This means you have “fallen out of status.” You cannot be deported while you have a pending asylum claim, but it will not stop you from falling out of status. This means that the fact that you have a pending asylum application, is not a bridge from your F-1 status; you cannot change your F-1 status to another non-immigrant status (for example) because you have fallen out of status. However, having a pending asylum application, does stop you from accumulating unlawful presence–the legal term for being in the United States while out of status. Having certain amounts of unlawful presence can sometimes bar you from certain immigration statuses or benefits. So in this sense, asylum pending can save the day for someone that was about to fall out of status, in many situations.
Also with an asylum application pending, you cannot leave the country without applying for special documents, and in general it is advised against. You are applying for asylum in the United States, and inherent in that, is the idea that the U.S. is the best place for you. If you go somewhere else, it may raise the question why wouldn’t you just stay there. Not to say you can never leave while your application is pending, there are exceptional circumstances, however it is delicate.
Here’s What You Can Do:
As we mentioned earlier, you do have some legal rights as long as your asylum case pending. In addition to being allowed to stay here while your application is pending, you may also be able to get a job. However, first you have to apply for an employment authorization document (EAD) by filing an I-765 with USCIS (for more information on EADs generally, click here. You are only eligible to request a work permit if your asylum application has been pending at least 150 days, and you have not gotten a decision. You should also be aware that if you deliberately take certain actions to prolong the asylum application review process, you will have to wait even longer before you can file Form I-765.
Taking college classes or engaging in similar activities should not be a problem while your asylum application is pending. However, there is no guarantee that you will be able to participate in the same internship or work programs as a foreign students who are here on F-1 visas. Nor is there any guarantee that you’ll be able to take classes for credit, or that you’ll be allowed to pay in-state tuition at public colleges/universities. It will be up to each institution to decide if they will grant you in-state tuition or allow you to take courses for credit.
Finally, moving within the United States while you are waiting for a determination on your asylum application is also permitted, just do not forget to let USCIS know your new address as soon as possible. Even if you do inform the agency promptly, be aware that moving may delay the processing of your application. If your asylum case has been transferred to an immigration court, you should consult an experienced immigration attorney for advice.
In summary, simply having a pending asylum application does not provide you with any type of legal status for immigration purposes. You do, however, have permission to be in the United States and have some limited legal rights as well. As long as your application is pending, you are free to move within the United States, apply for a work permit (after 150 days of no-decision), and pursue some educational opportunities. To learn more about what you can and cannot do while your application is open, you should contact an experienced immigration attorney for help.