New Rule Spells Potential Trouble for Asylees

by Jason Dzubow on September 19, 2017

There’s a new State Department rule in town about misrepresentation, and it could signal trouble for certain asylum seekers and others who enter the country on non-immigrant visas and then seek to remain here permanently or engage in other behavior inconsistent with their visas.

The State Department has a long tradition of blocking visas for people facing persecution (if you don’t believe me, Google “Breckinridge Long”).

To understand the problem, we first need to talk a bit about non-immigrant visas (“NIV”). To obtain an NIV, you have to promise to comply with the terms of that visa. One common NIV requirement is that you must intend to leave the U.S. at the end of your period of authorized stay (some NIVs are exempt from this requirement, most notably the H1b and the L, which are known as “dual intent” visas). Another common NIV requirement is that the visa-holder should not work in the U.S. without permission. If you breach these requirements, there are often—but not always—immigration consequences.

For example, up until the rule change, if an alien entered the U.S. on a B or F visa, or on the Visa Waiver Program, and then filed to “adjust status” (i.e., get a green card) within 30 days of arrival, the alien was presumed to have had an “immigration intent” at the time of entry, and thus USCIS would assume that she lied about her intention to leave the U.S. at the end of her authorized stay (in government-speak, this is called a misrepresentation). If she violated her status between 30 and 60 days after arrival, USCIS might still decide that she misrepresented her intentions when she got the visa (this was known as the 30/60 day rule). If she filed for the green card on day 61 or beyond, she would generally be safe. There are exceptions and caveats to all this, but you get the picture.

Enter the new rule, which appears in the State Department’s Field Adjudications Manual (at 9 FAM 302.9-4(B)(3)):

[If] an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… you [the consular officer] may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

This change specifically affects people applying for visas at U.S. consulates, but it seems likely that USCIS could adopt the rule as well, which would mean that people who come to the United States on certain NIVs and who engaged in “non-status-compliant activity” within 90 days of arrival will be presumed to have lied in order to obtain their visas. All this means that the 30/60 day rule is dead, at least so far as the State Department is concerned, and probably for USCIS as well.

This is all pretty boring and confusing, you say. What does it have to do with asylum seekers?

The issue is, if a person comes to the United States and applies for asylum within 90 days of arrival, he might be considered to have lied about his “immigration intent” in order to obtain a U.S. visa. In other words, requesting asylum (and thus asking to stay permanently in the United States) is not consistent with coming here on most NIVs, which require that you promise to leave the U.S. at the end of your authorized stay.

This problem is not just academic. I’ve recently heard from a colleague whose client came to the U.S., won asylum, and obtained a green card. But when the client applied for citizenship, USCIS accused him of a “misrepresentation” because he entered the country on an NIV and then sought to remain here permanently through asylum. This example comes amidst several cases—including one of my own—where USCIS seems to have pushed the boundaries of the law in order to deny citizenship to asylees. It also seems part of a larger pattern to “bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing.”

I should note that the above examples are not related to the new State Department rule (probably), though if USCIS implements a similar rule, it would potentially expose many more asylees (and other USCIS applicants) to the same fate.

It’s a little hard to understand what USCIS is trying to do here, or why they are doing it. For one things, there is a waiver available to refugees and asylees who commit fraud (the waiver forgives fraud and allows the person to remain in the United States). Also, when a person fears persecution in her country and qualifies for asylum, low-grade misrepresentations are routinely forgiven. So the likelihood that any asylee would ultimately be deported for having lied to get a visa is close to zero. In other words, USCIS can delay the process, and cause these asylees a lot of stress and expense, but in the end, they will remain here and most likely become U.S. citizens (eventually).

Perhaps this is the Trump Administration’s implementation of “extreme vetting.” If so, it’s more appearance than substance. It looks as if something is happening, but really, nothing is happening. Except of course that USCIS is mistreating people who have come to the United States and demonstrated that they have a well-founded fear of harm in their home countries. So—like a Stalinist show trial—such people will admit their “misrepresentations” (in many cases, for the second, third or fourth time), go through the hassle, stress, and expense of the waiver process, and then end up staying here just the same.

It’s too bad. USCIS can do a lot of good—for immigrants and for our national security. But unfortunately, their current path will not lead to improvements in either realm.

{ 66 comments… read them below or add one }

Yaser December 15, 2017 at 3:41 am

Hello Jason,
Really appreciate the information it’s support all Asylum seeker thank you. I am Asylumee and my case got rejected by office at SF. and I am looking to transfer my case from SF court to Minneapolis court is that possible? and do you think which is more supportive SF or MN from judges side?
If I kept an address in SF of my relative and changed my home to MN is that possible? Or that will be illegal?

Please advise

Thanks in advance

Reply

Jason Dzubow December 15, 2017 at 7:31 am

If you move to MN, you have to inform the court. They may automatically move your case, or you may have to request that it be moved. As for which court is better, you can Google “TRAC immigration” and find statistics for the different courts. Take care, Jason

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mo November 26, 2017 at 2:11 pm

Hi Jason,
I have granted asylum, Thank you for everything, Without your deft skill, warm style, and experienced perspective, I couldn’t have made it.
What shall I do now?
At the same day, they gave me a copy of my acceptance.
Shall I wait until I receive the original document from the court or I can immediately apply for unrestricted social security number and I-730 for my family?

Shall I change my EAD?
Shall I have to apply for a waiver to bring my kids as new Trump’s EO, as I am from six countries?

I appreciate your reply

Reply

Jason Dzubow November 26, 2017 at 8:48 pm

First, take some time to relax. Second, you can file the I-730 forms for your family members immediately. The asylum office should send you a new EAD, so do not worry about that. I do not think you need a new SSN – since you are not a US citizen (yet), you still need the EAD to work legally. As for the latest EO, I did a blog post about that on October 5, 2017. The very last paragraph is the one that applies to you, but basically, it says that I-730 beneficiaries–like your family members–are not subject to the EO and should be able to come to the US normally. Take care, Jason

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mo November 27, 2017 at 1:01 am

Thank you, Jason,
Actually, I was granted it by the court. In the USCIS they said:
“You may immediately apply for an unrestricted Social Security card at a Social Security office once you have asylees status.”
https://www.uscis.gov/humanitarian/refugees-asylum/asylum/benefits-and-responsibilities-asylees

Do I have to wait for the court to send me some documents or go ahead with the copy they gave me on the hearing day?

Thank you

Reply

Jason Dzubow November 27, 2017 at 7:26 am

You should have an order from the court. Also, if you Google “post order instructions immigration court benefits”, you should find a PDF document with instructions about the next step. You can also get this document from the court itself or the DHS attorneys office. Take care, Jason

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Bilal November 20, 2017 at 12:45 am

Dear Jason,

Dos issued a new revised guidance regarding the 90 days rule ,
The 90 days rule will not apply on application filed before September 1-2017 so it is not retroactive, https://travel.state.gov/content/dam/visas/policy_updates/17%20STATE%2095090%20Change%20to%20INA%20212(a)(6)(C)(i)%20and%20Introduction%20of%2090%20Day%20Rule.pdf

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Jason Dzubow November 20, 2017 at 7:45 am

Thank you for letting us know, Jason

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M November 10, 2017 at 4:54 pm

Hi Jason i fill for asylum is almost months haven receive letter for my finger print but have receive a receipt,can I go ahead and file for my working permit and second can I travel to another state cause am afraid they mighty say am illegal.

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Jason Dzubow November 12, 2017 at 8:26 am

You should have a receipt and a fingerprint appointment. If not, contact the local asylum office to ask about that. You can find their contact info if you follow the link at right called Asylum Office Locator. If 150 days have passed since you filed for asylum, you can apply for a work permit (form I-765, available at http://www.uscis.gov). You should be able to travel anywhere in the US. Keep evidence of your asylum case (receipt) with you to show that you are here lawfully. Take care, Jason

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Rabis November 8, 2017 at 3:50 pm

Hello jason,
My friend in texas got caught by an immigration officer about 6 months back while he was working at his relatives gas station and hence he has a case going on court because of that but the court would not be able to prove that he is guilty, hopefully that is cause he was just filling out for the employee who was sick. Can he file for asylum while his case is still ongoing? He is in F-1 status
Thank you

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Jason Dzubow November 9, 2017 at 6:47 pm

He probably can file for asylum, but he might want to talk to a lawyer to make sure he is eligible and it is a good idea. Take care, Jason

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waiswa October 18, 2017 at 10:19 pm

hello Jason
i sent in my asylum application and tracking shipment shows it was received on 30th Aug, but upto now not got a receipt and i am an F1 what could be happening.

Reply

Jason Dzubow October 19, 2017 at 6:16 am

Make sure you sent it to the correct address – there are multiple places to mail it, depending where in the US you live, and if you send it to the wrong place, it may disappear. You can contact your local asylum office to see whether they have any record of the case. You can find their contact info if you follow the link at right called Asylum Office Locator. If they do not have it, you should probably file again, with an explanation about what happened. Also, you can file a Freedom of Information Act request (form G-639, available at http://www.uscis.gov) to get a copy of whatever you filed previously, though this will take at least 4 or 5 months. Take care, Jason

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Bilal October 9, 2017 at 7:21 pm

Hi Jason
Is Asylee eligible for willful misrepresentation waiver.
And what is the low-grade misrepresentations?
Thanks

Reply

Jason Dzubow October 10, 2017 at 6:24 am

In most cases, they should be – use form I-602, available at http://www.uscis.gov. “Low grade misrepresentation” is just my term. I was referring to small misrepresentations that previously would not have required a waiver. Take care, Jason

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Hind October 3, 2017 at 9:47 pm

Dear Jason,

My asylum application is ready I am only here 50 days since I entered the country what is your suggestion about the new rule is it better to wait until day 91 or if uscis will apply the new rule doesn’t Matter if I applied before or after the 90 days? Thanks

Reply

Jason Dzubow October 4, 2017 at 6:36 am

I am not advising my clients to wait, as the rule is too unclear, and most people do not want to wait for 90 days. I am just telling people the rule, and they can make their own decision about whether to file before or after the 90-days. Take care, Jason

Reply

jan October 3, 2017 at 3:57 pm

Can I travel to Puerto Rico to help afflicted people?

Can I travel to Puerto Rico back and forth while I am still on pending asylum case? I have work permit, and my original H4-single-entry visa has expired already long time ago

I volunteered with My company to help hurricanes afflicted areas. Florida was the main target. But now My company checked with me if I am available to go to Puerto Rico. Please advise..

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Jason Dzubow October 4, 2017 at 6:26 am

Puerto Rico should be fine, but if you stop somewhere else on the way, it could create issues (like US Virgin Islands), so I would just make sure to get a direct flight from the mainland. Take care, Jason

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Michael October 3, 2017 at 12:38 pm

Hi Jason,

My wife and I arrived here on B1/B2 visa, which expires soon. We will apply for affirmative asylum soon. Yet, it will be approximately a week or 10 days after our visa expiration date. Do you think that we overstayed our visa for a week or two would be a problem for our asylum case and for our green card and citizenship applications?

Thanks,

Reply

Jason Dzubow October 4, 2017 at 6:24 am

It should not be a problem for your asylum case, GC or naturalization, as long as you have been in the US less than one year when you file for asylum. Take care, Jason

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Mike October 2, 2017 at 4:23 pm

Hi Jason,

Thank you for all the information you give us!
I have a couple of questions regarding misrepresentation: based on my asylum declaration it is clear that I planned in advance to flee my home country due to the circumstances. Even though I applied for asylum after 6 months of stay, will this misrepresentation rule apply to me? Will this rule apply to those with already pending applications, if at all?

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Jason Dzubow October 2, 2017 at 5:44 pm

It could apply to you. It seems to me that the worst case is that you would need a waiver, and after that, you will be fine. There is not much you can do about it, but when/if you apply for a green card, you might want to check whether the government is enforcing this rule, and if so, maybe talk to a lawyer for some guidance. Take care, Jason

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Atinder Singh September 29, 2017 at 12:33 pm

Hello Jason

I applied my Asylum in July 2014. I live in Seattle and i applied asylum & send my application to SF. I still haven’t received any interview with immigration. Do you know how long it can take ? San Francisco CA is interviewing for the applicants who filed April to June 2015.

If i marry US citizen am i eligible to get green card because i enter US via mexico border illegal. I know you have to go back to your country and apply from there if you enter illegally.
But i heard you can apply for waiver (Pay fine and apply from green card on marriage bases in US)
Is this true ? Can you help applying waiver ?

I worked for Microsoft , Amazon and Now with Expedia in IT
Do you thing job standard affect case ?

Kind Regards
Atinder

Reply

yousef September 29, 2017 at 2:12 pm

Hi,i had sent an email to SF office and asked about schedule in Seattle they answered that they are interviewing in Seattle who filed on December 2013,its amazing i do not know way???
i filed I-589 on October 28th and i live in Seattle too.

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Atinder Singh September 29, 2017 at 2:56 pm

What year you file I-589 ?
So if i file from Seattle i will get interview according to Seattle interview schedule ?

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yousef September 29, 2017 at 3:02 pm

I filed on October 28th 2016 and yes SF is main office ans Seattle is sub office and we are gonna interview on Seattle ,i know the person who filed on November 2016 and did his interview on may 2017 i think every case is different but we should keep our hope.

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Atinder September 29, 2017 at 3:17 pm

Thank you Yousef for the information. Really appreciate
If they interviewing 2013 December cases hopefully I will get my interview soon.
Let’s hope for the best!!!

Jason Dzubow October 1, 2017 at 8:21 am

I think basically everyone who files in Washington State has an interview in Seattle. You can email the San Francisco office and ask which office covers your zip code. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

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Jason Dzubow October 1, 2017 at 8:15 am

Ugh. That is very slow. One hope is that when they do come to Seattle, they will interview a lot of people, and so hopefully, they will cover a lot of cases and the wait will not be as bad as it looks. Take care, Jason

Reply

Jason Dzubow October 1, 2017 at 7:57 am

You are in the Seattle sub office, which is probably slower than SF, but I think you should email SF and inquire about the interview, just to make sure they did not somehow skip your case. You can find their contact info if you follow the link at right called Asylum Office Locator. If you entered the US illegally, normally the process to get a GC based on marriage to a US citizen is difficult and requires you to leave the US. There are a few (rare) exceptions, so maybe you want to talk to a lawyer about that. In the very large majority of cases, you cannot get a waiver in order to avoid leaving the US, and you would need leave the country to get a GC. Take care, Jason

Reply

Atinder Singh October 1, 2017 at 2:44 pm

Thing is i can’t go back to my country because of life threat #Asylum.If they ask me to leave the country.

Rest i will mail SF office regard my case. Do you think they will mail me back with what’s going on and how long it will take to get my interview dates ?

Reply

Jason Dzubow October 1, 2017 at 10:28 pm

They might. Anyway, there is no harm in trying. Take care, Jason

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H September 28, 2017 at 4:59 pm

Hello,

I have been following up with your posts since I came into the US. My asylum case has been pending for about 4 years and I received a denial decision today. I don’t know what to say… I am residing in Maryland and I am assuming the case will be heard in front of a judge here in Baltimore. I wanted to ask for your opinion about hiring a lawyer (I hired one when I first applied but she charged me a lot and she kept on asking for more so I couldn’t keep paying). Is it necessary to hire a lawyer? Also, Is it possible for my case to get accepted by the judge? Does the judge consider the amount of time I have waited?? In 4 years, I went to school here and I became one of the best students in my university and I am aiming to apply to med schools.. Will everything be shattered?? Please let me know what you think.
Thank you,

Reply

Jason Dzubow September 29, 2017 at 6:12 am

For court cases, you should have a lawyer (probably a different lawyer). I wrote about this on July 7, 2016 – maybe that would help. We have done many cases where the asylum office denied, but the judge granted (I did one earlier this week in Baltimore), and so there is certainly still hope. As for the wait time, it should have no effect. Baltimore cases tend to take 1 to 2 years, which is not bad by immigration court standards. Take care, Jason

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H September 29, 2017 at 7:38 am

I understand I will read the article and get in touch with you soon. I just want you to clarify, did you mean it’ll take 1-2 additional years for my family and I to see a judge? Or did you mean that the judge doesn’t care if we’ve been waiting for 4 years for a decision?

Thanks!

Reply

Jason Dzubow October 1, 2017 at 7:50 am

It’s not that the judge does not care, but judges generally do cases they have in order that they are received, and so whether you have been waiting a long or short time, will normally not influence how long you wait with the judge. Of course, you can explain this to the judge and ask for an earlier date. We ask this sometimes, but it usually does not make much difference, as the judges do not have slots open to give out earlier dates. Take care, Jason

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H September 29, 2017 at 8:06 am

I realized I will be in school till 7 tonight. My parents were wondering, how much does your office charge to take our case and represent us in court? If you don’t usually give estimates here. Would you prefer if I email you? If yes, what email would you like me to reach you on? Thanks again.

Reply

Jason Dzubow October 1, 2017 at 7:51 am

For cases in court in VA and MD, we usually charge $4,000 for the entire case, including two trips to court. If you would like to email me, it is Jdzubow@DzubowLaw.com. Take care, Jason

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H September 30, 2017 at 7:44 pm

I am sorry for asking lots of questions but too much happened and it is a weekend. I thought I’d ask you about this now. We (my family and I) submitted our work permit renewal work permit application a couple of months ago and it was returned to us because the fee waiver wasn’t accepted. We had to wait for more than a month to be able to secure the funds and now we are going to send it in. Do you think we are doing the right thing? I know that we are waiting to meet with the judge but I read that if the judge says no and the work permit is not accepted then we are basically going to lose it. Since the court wait time is long, I am assuming the chances of us not getting our work permit by the time are low.. Am I doing the right thing here? Thanks!

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Jason Dzubow October 1, 2017 at 9:51 pm

Normally, even if the judge says “no”, you can appeal, and that often takes a year or so, so you would be able to keep the work permit during the appeal. So even if the court case ends quickly (and most cases do not end quickly), you could still keep the permit during the appeal period (assuming you file an appeal – that is your choice). Take care, Jason

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sudan September 27, 2017 at 8:39 pm

Hi Reza,
Congratulations,the filing date should be 2014, as I checked Sanfransisco CA is interviewing for the applicants who filed April to June 2015. Please can you make sure about the year you filed.Thanks.

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Reza September 28, 2017 at 12:53 am

Hi Sudan,
Actually I arrived to the US on MAY15, 2015 and my lawyer filed my case on SEP 2nd. I know about SF schedule bulletin, but I was interviewed fortunately 6 month after filing the case. I guess because my name was in the short list.
Whole of process took almost 2 years for me.
I hope everything goes well for everyone.

Reply

Reza October 2, 2017 at 3:49 pm

Hi @Reza,
I need your answer to me below asks about city you lives and your lawyer name , i’am in California and i need help please
thanks

Reply

ishan September 27, 2017 at 5:36 pm

really appreciate your answer but the point worries me is this news, Kindly read it and let us know. So as an asylee we are interviewed again for green card ?
http://www.politico.com/story/2017/08/25/trump-administration-green-card-hurdle-242050

Ishaan

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Jason Dzubow September 28, 2017 at 6:13 am

As far as I know, only dependents will be interviewed for the GC; principle asylum applicants will not be interviewed. Anyway, we will know more after October 1 when they implement the change. Take care, Jason

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Jimmy September 28, 2017 at 11:52 am

The new interviews seem to only apply to a specific category:
Effective Oct. 1, USCIS will begin to phase-in interviews for the following:
• Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status).
• Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.
Principal asylum applicants and their relatives that were added to the cases before the grant of Asylum and attended the Asylum interview (Not petitioned) should not be interviewed again. Only the relatives (Form I-730) will be.
Anyway, like Jason said, we will know more after October 1 when they implement the change.

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alex September 27, 2017 at 5:31 pm

Hi Jason,

Do you know how USCIS will implement the ban 3.0? will nationals of banned country be barred from adjusting status (family or employment based)? If they do deny or halt approvals for applicants, will that be subject for litigation?

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Jason Dzubow September 28, 2017 at 6:11 am

I don’t know how it will be implemented, and I think no one knows what the ban will look like once litigation is done. I do expect there will be lawsuits about this, and we will have to see what happens. Take care, Jason

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Shellof September 27, 2017 at 1:07 pm

Hi.i applied for renewal of my EAD card on April 15 and Nibraska office sent me receipt that they received my form on April 20,2017. My EAD Card expired on August 13,2017.i have 6 month waiting letter.my job is in danger if i not received EAD card in 6 months.i see daily online and also talk on help line but same status.what i should do?

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L.F September 27, 2017 at 4:42 pm

This office is the slowest one…
I applied in may 23 and still waiting
My friend (roommate ) applied in july 24 and Monday he received his EAD for two years, his office was in VA I think
My lawyer today told me that I should receive my EAD in two weeks… let’s see

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JRT September 27, 2017 at 5:49 pm

Somewhat similar situation. My application for renewal has a receipt date of April 18. Still no change of status from “case received”, however. You can make an Infopass appointment to try to find out the status of your case. Or you can submit an electronic request for case assistance with the USCIS Ombudsman.

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Jason Dzubow September 28, 2017 at 6:09 am

You can make an Info Pass appointment at http://www.uscis.gov and go in person. You can also contact the USCIS Ombudsman office – a link is at right. You have some time, since the EAD card is extended by 6 months, to about February 2018, but still, your EAD process is moving very slowly. Take care, Jason

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Asylee September 29, 2017 at 1:33 pm

Can I ask them to process it faster ?

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Jason Dzubow October 1, 2017 at 8:03 am

You can call or make an Info Pass to ask USCIS to expedite. It most likely will not work, but there is no harm in trying. Take care, Jason

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Reza September 26, 2017 at 8:03 pm

☺️

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Besho October 2, 2017 at 5:06 am

Congratulations Reza ,
I hope you can help me if you please tell me which city you are lives in California when you submit your asylum case and wait your interview and tell my your Lawyer name because i search for one, i face many problem and i need some help,
Thanks

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Reza September 26, 2017 at 1:44 pm

Dear Jason
Many many thanks for your wonderful job.
I’m from one of banned country and I received my approval notice today. It’s the time to apply for my family to bring them here.
Do I need an attorney for that or not?

Reply

Aylum Seeker September 26, 2017 at 2:05 pm

congratulations Reza , could you share your timeline , and your Asylum office location ?

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Reza September 26, 2017 at 7:47 pm

Filed I-589 on SEP 2nd 2015
Interviewed on FEB 29th 2016 in San Francisco
Approved on SEP 12th 2017
Approval notice received on SEP 25th 2017

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Sara September 26, 2017 at 7:50 pm

Congrats, Reza! I hope you reunite with your family soon 🙂

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Reza September 26, 2017 at 7:57 pm

Thank you Sara, I miss them so much.

Jason Dzubow September 27, 2017 at 6:29 am

That is up to you. The old ban would not have affected them, but I am not sure about the new ban. In any event, an attorney cannot erase the ban if it does affect them. If you do not use an attorney and you run into trouble, you can hire one later. Of course, speaking as a lawyer, it is easier for us to start the case from the beginning rather than enter into the middle of a case once things have gone wrong. Anyway, if you can afford it, I suppose it is a good idea. And congratulations on the asylum win. Take care, Jason

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Reza September 28, 2017 at 4:40 am

Thank you so much

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Sara September 26, 2017 at 7:58 pm

I’m sure! Only a matter of time now 🙂 Good luck!

Reply

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