If you add up all the people with pending asylum cases at the Asylum Offices, Immigration Courts, and Board of Immigration Appeals, there are over one million souls waiting in limbo. Many will be waiting for years. During that time, some applicants will inevitably become eligible to obtain legal status in the U.S. through other means. Here, I want to discuss the possibilities for a green card for those with a pending asylum case.
We’ll start with the easiest and most common path to a Green Card for asylum seekers already in the country: Marriage to a United States citizen. In a future post, I will cover other ways asylum seekers might obtain residency in the U.S., such as marriage to a lawful permanent resident, sponsorship by an employer, and the Visa Lottery.
As a preliminary matter, I should say that the rules discussed here apply not only to spouses of U.S. citizens, but also to other “immediate relatives” of U.S. citizens. Immediate relatives are (1) spouses, (2) unmarried children of U.S. citizens where the child is under 21 years old, and (3) parents of U.S. citizens where the U.S. citizen child is over 21 years old.
Second, I should note that under U.S. immigration law, same-sex marriage is allowed, and such couples are treated the same as heterosexual couples for purposes of immigration.
With that out of the way, let’s talk about obtaining a Green Card by marrying a U.S. citizen. Not everyone who marries a citizen is eligible to obtain a Green Card, but most people are. If you entered the country lawfully (usually with a visa), you have not been ordered deported, and you have no serious criminal issues, you are most likely eligible to adjust status (i.e., obtain your Green Card without leaving the U.S.) based on the marriage. Check with a lawyer to be sure you are eligible, as there is no sense starting the processing (and paying a lot of money), if you are not legally able to get your Green Card.
Cases at the Asylum Office: The process of applying for a Green Card varies depending on whether you have a case pending with the Asylum Office or the Immigration Court. Normally, for Asylum Office cases, we file the I-130 (petition for alien relative), the I-485 (application for a Green Card), and accompanying forms and evidence with USCIS. This includes filing for a work permit and Advance Parole, which will allow you to work and travel while the Green Card application is pending (when you pay for the I-485, the fee includes these applications as well).
If you are lucky, USCIS will process the case normally and you will get a Green Card. If the marriage is less than two years old, you will receive a Conditional Permanent Resident card that is valid for two years. Prior to the card’s expiration, you will need to file another form to obtain the lawful permanent resident card. If the marriage is more than two years old, you should receive the lawful permanent resident card, which is valid for 10 years. Once you have the temporary or permanent Green Card, you can inform the Asylum Office and close your case.
Some Green Card applicants are not so lucky, and their cases get delayed. If that happens, we contact the Asylum Office and tell them about the pending Green Card. In some mysterious way, they sometimes help move things along (it may be that the Asylum Office has a file that USCIS needs to adjudicate the marriage case). If that doesn’t work, we can try withdrawing the asylum case to pursue only the Green Card case, but at least in my opinion, it is preferable to keep the asylum case alive until you have the Green Card in hand.
Cases in Immigration Court: The process is different for people in Court (or before the BIA). For one thing, you don’t normally file the I-130 and the I-485 together. Instead, the U.S. citizen spouse files the I-130 petition alone. The purpose of this form is to get USCIS to “approve” the bona fides of the marriage (in other words, to agree that the marriage is true).
In contrast to I-130 cases where the alien is not in Immigration Court, the burden of proof is higher, meaning you need to submit stronger evidence that the marriage is real. Technically, you are asking for a bona fide marriage exemption (USCIS suspects that people in Court may get married in order to avoid deportation, and so such cases are flagged for extra attention). In practice, while USCIS often asks for a formal declaration from the couple that the marriage is bona fide, the standard of evidence is not discernibly different than in “regular” I-130 marriage cases.
Once the I-130 is pending, we typically inform the Court and give them a copy of the I-130, the supporting evidence, and the I-130 receipt. Depending on the stage of the case, we often ask the Immigration Judge for a continuance, so that USCIS has time to process the I-130 petition. If there is a processing delay from USCIS, we sometimes contact the DHS attorney and ask whether they can help facilitate the I-130, which they usually agree to do. This can sometimes magically move things along at USCIS.
Once the I-130 is approved, we inform the Court and can then try one of two paths to get the Green Card. Either we ask the Judge to terminate proceedings so the person can “adjust status” (i.e., obtain a Green Card) with USCIS, or we ask the Immigration Judge to grant the Green Card in court. Often, the Immigration Judge will make this decision for you. But if you have a choice, you should know that there are advantages and disadvantages to each approach.
If you decide to go with USCIS, which is probably the more common choice, the first step is to get the Judge to terminate proceedings (be sure that you get an order “terminating” proceedings, not an order to “administratively close” proceedings, which keeps jurisdiction with the Judge and blocks you from obtaining a Green Card from USCIS). When we tried this in the past, the DHS attorneys and the judges were amenable to termination, as that makes life easier for them. However, in a recent case, the DHS attorney would not agree to terminate proceedings until we completed the I-485 and provided proof that we paid the fee. The problem is, the fee has to be paid in a particular way for cases in Immigration Court. We paid the fee and received the receipt. After that, the case was terminated. We then tried to use the fee receipt to “pay” for the I-485. In the past, USCIS has accepted the fee receipt in lieu of payment, but this time, they refused, and so my client had to pay the fee a second time ($1,225!). Next time I have a case like this, I will ask that proceedings be terminated without the fee receipt, which will hopefully avoid the problem of paying double fees.
Once the case is terminated, the applicant can adjust status with USCIS. It is pretty common to see delays in such cases, where the person was previously in removal proceedings. But ultimately, everyone who does this seems to end up with a Green Card, and it is easy to get a work permit and travel document (Advance Parole) while the case is pending with USCIS.
Alternatively, you can ask the Judge to schedule an Individual Hearing to approve the Green Card in court. This can be faster (depending on the Judge’s schedule), and should avoid the problem of double fees, but it is more difficult to get a work permit while you are waiting (you can try to use the I-485 fee receipt to “pay” for the EAD, but as we found out, that does not always work). Also, you cannot travel outside the U.S. until the Green Card is granted (if a person in Immigration Court leaves the U.S., he has effectively deported himself). Once the Judge approves the Green Card, you will need to make an Info Pass appointment to obtain the physical card.
Some Exceptions: Not everyone who enters the country illegally, or who has a criminal conviction or a deportation order, is ineligible to get a Green Card through marriage to a U.S. citizen. However, if you fall into one of these categories, you would want to talk to a lawyer about your eligibility.
For people who entered illegally, there is a law called INA 245(i) that allows certain people to pay a fine and obtain their Green Card despite the unlawful entry. To qualify, you would have had to be present in the U.S. since at least December 20, 2000 and have had a family member or employer file an immigrant petition or labor certification for you (or possibly a parent) prior to April 30, 2001. There are other requirements too, and so you would want to discuss the specifics of your case with a lawyer. Also, potentially you can leave the U.S. with a provisional waiver and obtain your Green Card overseas. This can also be problematic, especially for asylum seekers who cannot go to the U.S. embassy in their home country, and so you would want to check with a lawyer before trying this option.
For people with a criminal conviction, there are possible “waivers” available. A waiver is basically a form (usually with a steep fee) that asks the government to forgive your crime and allows you to obtain your Green Card. Many waivers require that you have citizen or resident relatives (parent, child or spouse) in the U.S. and that the relative(s) show that they would suffer some type of hardship if you were deported. Again, you would want to talk to a lawyer about this.
People with a deportation order, or some other type of immigration issue (such as the J-1 two-year home residency requirement) might also be eligible to adjust status. But especially for people with a deportation order, it is very important to talk to a lawyer. Part of the Green Card process involves an interview with USCIS, and there have been many recent examples of people with deportation orders being detained by ICE at their I-130 interviews. A lawyer can’t stop you from being detained, but she can evaluate the likelihood of a problem, and help you weigh that risk against the possibility of a successful outcome.
For most asylum seekers who marry a U.S. citizen, the likelihood of obtaining a Green Card is quite high. However, the process can be bureaucratically challenging. For all these reasons, if you can afford a lawyer to get you through the system, that is probably a good idea.
In a future post, I will discuss some other paths to residency for asylum seekers, Stay tuned.
Hello Jason,
Hope that you are staying safe.
Quick question, if I are submitting form I-130 with I-485, do I need to submit form I-693 since I am required (as far as I understand) to do a physical exam with I-944 anyway?
Thank you.
If you are filing for a GC, you typically need to submit the I-693. You can do that at the time of filing or later on. The I-944 is the public charge form, and that is also needed for certain GC applicants (though not for asylees seeking a GC based on their asylum status). Take care, Jason
Thank you Jason. I’m applying for a marriage based green card while my asylum case is pending. It is required to submit a doctor’s letter to state that I don’t have any underlying condition that can hinder me from working with the I-945, correct? If so, then I might as well I-693 now. Do you agree?
I have not yet done an I-944, so I am not sure (though I have a couple cases pending). It sounds like these are two different things, though, and I do not know that the I-693 will suffice if such a letter is needed for the I-944. In any case, there is no reason not to include the I-693 when you mail the case (assuming you can get it done in the midst of all these closures). Take care, Jason
Hi Jason,
My wife is applying for the green card for me. However, her passport expired. Will that cause any problems with the application?
Also, for the new public charge form. The information required (assets/liabilities/credit score) is it only for myself as the person applying for the green card or for her as well?
Thank you!
She should not need a passport, as long as she can prove she is a US citizen (assuming that is the basis for her petition). As for the public charge, that is for you, but she needs to complete an affidavit of support, form I-864, which requires her financial info as well. Take care, Jason
Thank you Jason. So we can just prove her US citizenship with her birth certificate.
That usually works. Take care, Jason
Hi Jason,
So I am applying for marriage based green card while my asylum application is pending. My wife is changing her last name on her name social security card and driver license. However, changing it on her passport takes a long time. Can we submit the I-130 and I-485 with her social security and DL with her newly acquired last name and include the passport that has her former last name?
Thank you.
I think that is fine, but the main thing to submit concerning the name change in the court document that actually changes her name (sometimes, the marriage license itself is also the name change document). Also, besides all the other forms, be aware that cases filed after today are subject to the new public charge rule (check out form I-944, available at http://www.uscis.gov). Take care, Jason
Does she need to go to court for this? We did the social security and we are doing the driver license. I didn’t know that she needs to go to court.
Thank you for telling me about the I-944, I didn’t know about it. Looks like such a hassle.
The I-944 looks to be a huge hassle. I think it is purposely designed to dissuade people from applying for the GC. Legally changing your name often involves going to the court and filling some forms with the clerk, but different states have different rules. If you call your local state court’s clerk’s office, they will know what to do, as this is pretty common. I highly doubt it involves seeing a judge, but usually the forms are with the court, and I do think you usually need to go in person. Take care, Jason
Hi Jason! Many thanks for all your efforts and the time you assign for this posts and the comments. I have a question regarding form I-485. How a derivative Asylee should fill “Part 2” on page 4 of the form? Is she/he considered a “principle applicant” or “derivative applicant”?
Thanks!
Maybe check the instructions to be sure. I think that the person is the principal applicant for the I-485, but to be safe, you might include info in the application to indicate who the principal asylee is. I doubt there is harm in filling the info about the principal asylee on the I-485, but maybe the instructions shed light on that question. Take care, Jason
I checked the instructions, and it doesn’t specify how this part should be filled. So I will go with the “derivative applicant” applicant option.
Thanks Jason!
For stuff like this, as long as you reveal everything and USCIS cannot accuse you of hiding information, you should be fine. Take care, Jason
I totally agree! Thanks Jason! 🙂
Hi Jason,
I am applying for a green card based on marriage to a U.S. Citizen. My asylum case is pending. I am filling out form I-485. There is a questions that asks about the current immigration status. Should I write pending asylum case?
Thank you.
We normally put whatever status you had before you applied for asylum, such as B-2 expired, but you can also put pending asylum. As long as they have proof about your entry and your current status included with the application, you should be fine. Take care, Jason
But if I put B-2 expired, doesn’t that insinuate that I broke my visa? which I never did as I applied for asylum before my allowed stay. Also, should I include a copy of the I-797C?
A couple of additional questions please, on the I-485 it asks about the number of the last issued passport under the I-94 section. The passport that I have now has a different number than the one that l used since my last entry since this one expired. Should I put the one on my I-94 records? Or the one that I have now?
Also, when applying for I-765 should I choose initial permissions, replacement/correction, or renewal?
Lastly, before I was granted my B-2 visa, in my home country, I was denied a US visa when I was a student. in the I-458 should I answer yes to the question “Have you ever been denied a visa?” Even though this happened more than 12 years ago.
I really appreciate your help Jason.
That is usually what we put – They will know your B-2 has expired, but you can probably put either without an issue. We put the current passport number and include evidence of the old passport(s). If they ask whether you were ever denied a visa, the answer is yes. You should also include an explanation about that with your application. Take care, Jason
Thank you so much Jason. What about the work permit? should I choose initial permissions, replacement/correction, or renewal?
Lastly, when filling out the I-131 to apply for the advance parole, is saying that I need it for a leisure trip fine? Also, it says that I should include a letter to explain why I need it. Is that necessary?
Thanks again
If this is your first EAD based on the marriage case, you can put initial application. However, you should explain that you already have an EAD based on the pending asylum case, and include a copy of that EAD. For AP in this situation, you should not need a reason, so you can say that. It might be better to find a sick or depressed relative you want to visit and use that as the basis for the AP, just to be on the safe side (and include evidence about that). Take care, Jason
Dear jason
I want to share good news!!
First off all I would like to thank so much for great support.Finally my case approved and I received green card today for 2 years.(under CR6)i am pending asylum and I married with us citizen.My asylum is still pending.I am wondering how to withdraw asylum, since I already LPR.
Congratulations! To withdraw the asylum case, contact the local asylum office by email and ask what to do – different offices have different procedures, but it is usually easy. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason
Dear jason!
Writing you back after a year.
I am pending asylum applicants (since 2015)and pending i130-1485(since 2018).My pd Aug:- 18 (i130)and its already crossed year already.I am surprising why San Francisco office is getting slower.i don’t know when i will be schedule for interview.Jason due to family reasons on job opportunity i am planning to move Richmond Virginia soon.I do not have any idea ,is it good or bad idea.because I already wait 5 years for asylum and 1 and half years for i130.i will have to wait more or do they schedule my interview as a application priority date.
Thank you jason for answering so many questions like me.I always visit your site to get update and more information.Thank you for creating wonderful site and forum.God bless you.
You can move, but if you do, make sure you file a change of address for all pending forms (AR-11, available at http://www.uscis.gov). Also, your spouse can call USCIS to inquire about the pending I-130 case. The number is 800-375-5283. Take care, Jason
Hello Jason,
Thank you for your efforts,
I am in a removal process and my court is in October 2020, i got married to my wife (green card holder and applied for citizenship last month), we filled i-130 in May, when should we expect our interview? Or there is no interview till i go to the court? Is the judge the only one who can grant my green card or i can get it before even my court date?
I just want to know what is the next step.
Thank you
Interview times are not very predictable, but it should come in 6 to 12 months, hopefully. If the October 2020 hearing is an individual hearing, you should probably inform the judge that you have a pending marriage case and potentially try to postpone that date. Talk to a lawyer about the best approach, as it would depend on the timing of the I-130 approval, whether your wife is a US citizen yet, and whether you are eligible to get the GC based on the marriage. Also, I wrote above (marriage to a US citizen) and on August 28, 2018 (marriage to a person with a GC). Take care, Jason
Hi Jason,
i had my asylum interview last year in 2018 and i scheduled for an individual hearing in 2021 ( 2 years and 2 months from now ) the reason for denial that i missed the one-year deadline by 3 months because of bad advice from my attorney
I`m getting married at the end of this year from American citizen that we have been dating for 5 years
and she will be filing for the i130, we have very strong evidence that the marriage is real, she visited me in my country before i come to US in 2016 and 66 thousands of pages of our conversations plus pics through the 5 years
at the asylum interview, the officer asked me why do i live in upstate ny i told her because i`m dating then she asked if she is an American citizen i said yes then she said out of record then asked why me and my gf didn’t get married i told her that I’m giving her the freedom of choice and I’m not pushing our relationship for a green card and she said you are right and i was really honest about my answers
at the end of the interview, she said out of records will be much easier to obtain a green card through marrying your gf.
my question is how hard will be my interview with USCIS and if my asylum interview answers on my situation with my GF will have negative effects?
sorry for long typing
Thank you Jason
As long as the marriage is real and you are eligible to adjust status (I wrote about that above), you should be fine. There is a higher standard of evidence for people in removal proceedings (immigration court), but people with a real marriage who live together should not have much trouble showing that the marriage is true. Take care, Jason
Hi Jason!
Hope all is well!
I meant to ask this before but I wasn’t quite sure if I should.
I have a pending asylum case as a derivative on my spouse’s case before the immigration court. However, we are separated but didn’t divorce yet. We didn’t have a reason and frankly we were just lazy to start the divorce and then I would have no status. I am dating someone and we are pretty serious, it’s not a question for now but I’m wondering how I could adjust status through marriage to a USC. In case we ever get to that point.
The thing is, I was in a same sex marriage for years because I’m bi, but my new partner is the opposite gender than my ex. I don’t know if that would cause any issues. I wrote in my statement about being gay in my home country as they don’t approve bisexuals either, and I was in love with my ex for years, we couldn’t get married at home. I came on a tourist visa and I overstayed because I was afraid of coming out and tell my family I’m in a same sex relationship. I went to therapy that helped me overcome my issues and I met this wonderful person after I separated from my ex. We had an individual hearing next year but the judge retired, so I don’t know who should we file the cancellation to, if we don’t have a judge. They didn’t reschedule yet. Also, is that the same procedure for derivatives too? I don’t have an asylum case on my own. I didn’t lie about anything, however my attorney put “gay” instead of “bi” in my personal statement because he thought that looks better. I didn’t like that but went with it. I have proof my previous marriage was real and this relationship is real too.
I just don’t know what to do as I don’t wanna file my own asylum case after the divorce but I might get married to my new partner. (who is a citizen)
Any suggestion would be appreciated.
I think you need to start taking action as soon as possible. If your plan is to divorce and re-marry, you should get started, as processing the paperwork for the divorce can take time, and so can filing for a marriage-based green card. You also need to separate your case from your (soon to be) ex-spouse’s case. You also need a new lawyer, since there may be a conflict of interest based on the fact that your current lawyer represented both you and your ex, and because the lawyer put “gay”, when it should have been “bi”, and you will need to explain how that happened. In short, I think you can get married to a person of the opposite gender, and you can overcome the fact that you said you were gay, but you need to get started as soon as possible, since all this will take time. Take care, Jason
Hello Jason,
First of all, I really appreciate your efforts to help immigrants with your expertise. Your website is a tremendous help and resource for us.
I have a few questions, I would really appreciate if could assist me in the best of your ability. I apologize in advance my questions can be a bit complicated.
I came to the U.S. as an exchange student with a visa, so I have a 2 year home residency requirement.
I filed for Asylum while I was attending my exchange program. Currently, my Asylum case is in pending and I have an ” Individual Hearing ” coming next year in Aug 2020.
However, during this time I got married. So my wife File I-130, which we should be expecting an interview soon and hoping that I-130 gets approved.
In addition, I have filed for form i-612 exceptional hardship waiver. my plan is if my waiver and i-130 get approved before the court hearing. Then I can try to get my Asylum terminated and if the judge terminates it, I can apply I-485 with USCIS or judge can hear the i-485 case. But if my waiver is still pending and i-130 is approved can the judge approve i-485 while waiver application is pending. Can a judge give me a sort of extension to stay in the US while I wait for the decision of my waiver case?
Finally, can a judge approve the hardship waiver or that is only decided by WRD and USCIS solely?
Thank you,
Regards
Hassan
I am not sure about this, but I believe the Judge does not have the authority to grant the hardship waiver – I think only USCIS can do that. However, if USCIS denies the waiver or fails to adjudicate it, you may need to have a lawyer look into this. Also, the Judge cannot approve the I-485 unless the waiver is approved, as you are not eligible to adjust status if you are still subject to the 2-year home residency requirement. Finally, the Judge can delay the case to give you more time to get a decision on the waiver, but the Judges are under pressure to issue decisions, and so the Judge may be unwilling to give you extra time. My guess is that most Judges would give more time. I do not know that a Judge would agree to terminate proceedings unless both the I-130 and the waiver are approved. Given your situation, you may want to inform the Judge now that you have filed the I-130 and waiver, and ask to move your case to a Master Calendar Hearing. If you can do that, it will give you more time, and if you do it now. at least you will give the Judge a heads up about what is happening in the case. Take care, Jason
Thank you very much Jason for all the information .
Hi Jason
Gracias for the info you give here. I was refered to the court in September 2018, married my USC girlfriend in October, she filed 130 in November and our i130 interview comes up on 17 June 2019. We have over 90% of proof of bona-fide marriage and I’m confident we will scale through the i130 process. Now my question is (1)how long does it take the immigration court to terminate proceedings?) (2.) Do I need to file for another EAd based on marriage as I already have EAD via Asylum.
Thanks
How long and whether the court will terminate proceedings varies by judge and DHS attorney. Recently, we had a DHS attorney refuse to terminate unless we paid the I-485 fee, which we did. The process to pay is different in court or if you are not in court, and I feared that my client would pay twice, which in the end, he did. So if they want you to pay the I-485 fee before terminating the case, you might be better off getting the GC with the Judge rather than with USCIS. As for the EAD, you get a one-year EAD for free when you pay the I-485 fee to USCIS. However, when and whether that is the best approach depends on the timing. If your old EAD expires relatively soon, you are probably better off just getting the renewal for the asylum-pending EAD, as you get the automatic extension for the old EAD. This whole process is annoying, but it should work out just fine in the end, as long as you are careful and you have no bars to the marriage-based GC. Take care, Jason
Hello applicant,
Pls how did your interview go and how long Time did it take you till you got the interview after filing for the i130.
Pls kindly reply. Thanks
Hello applicant,
Pls how did your interview go and how long Time did it take you till you got the interview after filing for the i130.
Pls kindly reply. Thanks
Jason pls you can also help out in replying. Thanks
I am not sure about the question – the wait time for an I-130 interview varies depending on whether a visa is immediately available, or if there is a waiting period. For cases where a visa is immediately available, we are seeing interviews in maybe 8 to 12 months, but that is a rough estimate. Take care, Jason
Hi Jason,
Thank you for this helpful article. However, I have a questions, if I am an asylee and I get married to a US citizen, after I file for the I-130 and I-485, how much time will it take from the time of filing to be able to travel outside the United States? Also, what document do I need to have so I can re-enter the United States?
Thank you so much for your help.
When you file the I-130 and I-485, you can also file the I-765 and I-131 for no additional cost. You will receive a work permit that is valid for travel, for one year. It probably takes 4 or 5 months to get that. Take care, Jason
Thank you!
Follow up question please, as an asylee, am I allowed to travel to US territories, ike US Virgin Islands, with a Drivers License?
You must go through customs if you visit the Virgin Islands, so you need an RTD. Different places may have different rules. For a cautionary tale, see the post I did on October 17, 2012. Take care, Jason
Thank you Jason. It’s definitely not worth the risk.
Two more questions, please, do I apply for the I-765 even though I have a valid work permit issued based on being an asylee? If I do, do they cancel my current EAD?
When you mentioned that the fees for I-765 and I-131 are free with filling the I-485, does that include the fee for I-130 as well? Or do I pay both the fees for I-485 and I-130?
Thank you so much.
Most people apply for the EAD – technically, you don’t need it, but the first one (based on category a5) is free, and it makes things easier for employers and driver’s licenses. The fees are only free with the I-485 if you are adjusting status based on marriage (and maybe the I-131 is free if you file to adjust based on asylum, but you have to check). The I-130 fee is separate. Take care, Jason
Thank you for your article. I am interested a lot in the path to a Green Card for asylum seekers already in the country: sponsorship by an employer. I contacted several attorneys and they all said it is impossible because pending asylum dont give you any lawful status. Please advice
In most cases, you probably have to leave the US to get a GC based on employment, and this may or may not be possible depending on the particulars of your case. I wrote about this issue on September 6, 2018. Take care, Jason
I live in the US with my mother; we entrented legally with visa. Im 18 years old and my mother(principal asylee)and I
(derviative asylee) are in asylum pending status. When she marries a US Citizen what will happen to our joint asylum status? Specifically myself being 18 years old. How will that effect my status? My Mother will marry and would need to withdraw her asylum pending status once she receives her GC?Would that withdraw my status as well?
She does not need to withdraw her asylum case – she can keep going if she wants. If she does withdraw the case, you would have to file your own asylum case (as soon as possible, so as to avoid any issue with the one-year bar, and also note that the filing procedure is different since you are already a derivative – check the I-589 instructions) or find another way to stay here. It may be that her new husband can sponsor you as a step child, but you should check with a lawyer to be sure (I do not remember if you are too old to qualify as a step child – I think you are ok, but I am not sure). Take care, Jason
Forever grateful to Jason, God bless you!
Hello sir,
i have the first hearing(notice to appear) in February next year. me and my fiancee(USA citizen) are planning to get married, so my question is: Is it better to get married before this hearing or doesn’t matter? because we don’t want to rush ourselves. and what the difference if we get married before or after? i mean will it make my papers slower or faster?
Assuming you are eligible to get your GC based on the marriage, it seems to me that the sooner you start the process, the better. You should talk to a lawyer about whether you are eligible and to help you with the process in court, which is a bit tricky. Take care, Jason
thank you sir
Dear jason and folks! I would like to thank jason for creating wonderful site,there is no word to thank.I am pending asylum since 2015.My concern is -I applied adjustment of status through marriage on July 2018. My time line is :-applied -july, Fingerprint done September and November -case is ready to be scheduled for interview! What is the time frame i can expect for interview now after this.I didn’t applied work Permit while applying i 130 because my card had still valid date for 9 months(Under c08 category)Now i am having great confusion,my work authorization card is about expire on march 2019.Should i apply under c 08 or under i 130.Have any one has this experience!Please help me.
We are seeing such green card cases take 12 to 15 months, but I think if you check the processing time on the USCIS website, it is slower than that. Theoretically, you should be able to use the I-485 receipt to file for an EAD under category c9 (I-485 pending). However, when we tried this lately, it has not worked, and so now we just have people pay the fee in order to avoid trouble. Alternatively, you can renew the EAD under c8. You have to pay, but you get the automatic extension of the old card and your card should be valid for 2 years. Take care, Jason
Thank you, Jason!
Today I applied my renewal EA based on C-08 category. My card is expiring on 21 of March 2019. Hopefully, I will get before that. Is there any chance to ask me a question about my pending asylum from iO in the interview(i-485) based on marrying US Citizen.what is the consequences of having two status at the same time.
They can ask anything they want at any interview, so you should review both (all) your cases before the interview, just to be safe. If you get a GC, you can contact the asylum office and close out that case. Take care, Jason
Dear jason and fellow readers!!
I am updating my EAD renewal under c(08) I applied on 17th December 2018 and got new card at feb 28th.They issued pretty quick.Even-though my old card still valid for 22 march.Although i am waiting interview (Marriage US citizens) since 206 days!
I’ve an appointment for individual hearing on Sep 2020. I’ve divorced from my wife which is living overseas. My wife sent me just one page of divorce certificate from the overseas court. Is there additional documents to be attached with the divorce certificate to send it to USCIS and the Immigration Court? Is the page divorce certificate enough? I’m also about to marry a USC. Thanks!
If you need the divorce decree for your case, you need to give USCIS whatever document or documents make up the decree. If it is a one-page document and that is it, you should be fine. Of course, if it is not in English, you need to submit it with a proper translation as well. Take care, Jason
Hi Jason
Many Thanks for your help.
I was refered to Chicago court and my MCH is in January 2019. I got married to a USC in two months ago and my spouse already filled i130. My lawyer is telling me he would request for Telephonic appearance for the MCH. If approved, would I need to be physically present at the Court? I’m worried about this because of been ordered deported for not showing up in court.
Thanks as I await your response
If the motion is granted and it specifically states that you do not need to appear in court, you should be fine. Otherwise, you should appear in court. Take care, Jason
Hi Jason,
Thank you for all of the help that you have been providing to this community.
I have a pending asylum case, since 2014. I have not had an interview yet. In August I married to a USC, and we filed for I-765, I-131, and I-485 forms. on the USCIS website, my marriage case is ready to be scheduled for an interview. Now, I am wondering, #1 if they will schedule the interview, will the IO can make a decision If I have a pending asylum case? #2, When is a good time to close my asylum case in your opinion?
Thanks a lot!
1 – They should be able to make a decision if the asylum is pending. 2 – Ideally, you should close the asylum case only once the green card is approved. However, if the green card case is delayed, you may want to contact the asylum office and tell them that you have a pending GC case. Sometimes, they need to take some action (such as send your file to the USCIS office working on the GC case) to move things along. You can find their contact info if you follow the link at right called Asylum Office Locator (under Asylum Seeker Resources). Take care, Jason
Hi Jason,
God bless you for all your help. My husband filed asylum he is the principal, we were referred to IJ and our court hearing Individual hearing is on July 2019. We filed for divorce and I married a USC, what will happen on the court hearing?
Thank you
You should talk to a lawyer, as you need to take action. Assuming your are eligible to do this (talk to a lawyer), your spouse can file a petition for you for a green card. The basic idea is described in the article above, but you also need to notify the court that you are divorced and probably get your case separated from your husband. In the end, assuming you are eligible, you should get a GC, but you should start working on that now. Take care, Jason
Thank you for your help. I am s pending asylum. First when I filed my case l was filed my wife and my kids. My wife went to jail two more times. Based on the information I was expedite my case but denied. So she told me that she was pushed by government agents quite any communication and to do what they say never to loose her job and her life.so she stop any communication with me a year ago. As a result I heard from a family member she married her boss. So I woul like to ask you some questions
1. I heard that she is trying to divorce me legally. The source told me her reason for the divorce is she doesn’t know where I am and I left the house for unknown reason. Ok let us say she get the divorce certificate and send me. Do I need to submit to USCIS? Does it has impact on my case because she had send an affidavit the she knew where I am?
2. If I would like to Mary a US citizen what gonna happen since she has already divorced me? What is important here?
Thank you
1 – You should tell them if you are divorced. If you submit that divorce certificate, you will need to explain what happened, and I suspect you will want to explain what happened even if you do not get the certificate. Letters from family members or friends who can explain the situation would help here. 2 – If you marry a USC, you may be able to apply for a GC as discussed above. You cannot legally marry unless you are legally divorced first. Take care, Jason
y
Jason,
If one has a pending case at the Asylum office and marries a US citizen, than they file the I-130 and I-485 forms concurrently. But is the Supplement A to the I-485 also required to be filed?
An asylum seeker entered the country with a student visa, applied for asylum before it expired, never engaged in work without a proper authorization, etc. (simply said, no bars).
If your answer “it depends,” whether it’s possible to schedule a consultation with your office in order to obtain an alternative point of view?
Unless you are filing based on INA 245(i), which is generally only for people who were in the US prior to 2001 (among other requirements), then you should not need the I-485 Supplement A. Take care, Jason
Jason,
Thank you for clarifying (I’ve definitely arrived after 2001). Simply put, filing the I-130 and I-485 should be sufficient? Do you recommend having an attorney during this process, or is it relatively straightforward (example: filing for a new EAD is straightforward and was successfully done by an asylum seeker himself)?
There are other forms as well, and I cannot go into that here, as it depends on the specifics of the case, which I do not know. In the past, I’ve said you can do such cases on your own, and you still can, but the risk is greater. USCIS is in the process of implementing a new policy where they may deny incomplete applications rather then send a request for additional evidence. This is new, and it is unclear how it will be implemented, but it does create a greater risk if you make a mistake. Maybe review the instructions to the I-130 and I-485 carefully, and see if you are comfortable with filing it. Also, look at forms I-130A and I-864, but depending on your case, other forms may be needed as well. Take care, Jason
Good point about the I-864.
If both parties (a Petitioner and a Beneficiary) are employed, there is no need in filling out the I-864? Because all the employment information will be provided in the I-130 and I-130A respectively.
The I-864 is required. Additional financial forms may be needed as well, so you have to look at the instruction page. Take care, Jason
Hi Jason.
I had my AOS Interview today. Officer interview my wife about the I-130 and about the I-485 she said that USCIS did not have jurisdiction because i have an asylum pending in Houston Court.
Im an arriving alien parolee by ICE.
I don’t know what is going to happen now im in the limbo my attorney didn’t said much that give me a clue about my case now.
Can you give me an advice i will appreciate it.
If you have a case in court, you are not eligible to adjust status (get a GC) with USCIS. You have to get it in court, or have the court case terminated and then seek the GC with USCIS. Also, in your case, if you are an arriving alien, you may not be eligible to get the GC without leaving the US (depending on how you entered the US – if you came without a visa, asked asylum at the border, and got paroled in, you are probably not eligible to get the GC without leaving the US). You should have a lawyer check this for you. Maybe you want to find a different lawyer, as it seems your first lawyer made a mistake by advising you to try to adjust status when you were not eligible. At least the lawyer should explain what happened to you. Take care, Jason
But if i leave to my home country. I will be ban for 10 years.
If that is the case, you should talk to a lawyer before you do anything else, as you want to know your options. Take care, Jason
Hi Jason, thank you for all that you do. I applied for asylum in 2015 and my case has been pending since then. I married a US citizen this year and filed for adjustment. Will my case automatically get delayed because I have a pending asylum case? How will I know if this is happening? Should I be proactive and inform the asylum office of my pending green card case. And if I should, what’s the best way to go about doing this? Thank you so much!
It is common for there to be delay, and so you might want to inform the asylum office about the marriage case. I do not know whether it will help, but it probably won’t hurt. You can email them and send them the receipts for the I-130 and I-485, and an explanation that you have filed for your GC based on marriage. In the past, I have not done that, and we did not really have many problems (maybe sometimes delay after the marriage-based GC interview), but these days, everything is more up in the air, and so informing them early may help. You can find their contact info/email if you follow the link at right called Asylum Office Locator (under Asylum Seeker Resources). Take care, Jason
Hello, I have an open asylum case and my next hearing it on January 2019, i fell in love and I got married after some years of relationships, on june 2017, previously my lawyer told me we can close or freeze my asylum case so we can proceed with the marriage case which already got accepted, but then yesterday my lawyer said the judge cannot do any decision about my asylum case, and I will have to volunteer to go out this country and request my forgiveness in my country, which can take years and years, But I am scared on going back to my country, should I get a new lawyer or this is the only way? Thank you
If you entered the country lawfully, you are most likely able to get your GC here, but it depends on the specifics of the case (as I discussed above and in the other parts of this series). You can still pursue your asylum claim, even if you cannot get your GC based on marriage. It may be worthwhile to talk to a second lawyer for another opinion, just to be more sure. Take care, Jason
Hello Sir,
thank you for your efforts, i have a question please about obtain green card by marriage, i have individual hearing in 2020, if i married my girlfriend in one month, can i apply for green card after? or i have to wait my hearing 2020 to ask for termination my deportation then apply for green card?
than you
You can start the process now, but as I discuss above, it is a process. Also, whether you are eligible to get your GC through marriage depends on the facts of your case. Talk to a lawyer to determine whether you are eligible and how to proceed. Take care, Jason
Hi Jason.
I crossed the border illegally on 2013, after all the mess and mistreatment with BP, I requested an asylum officer when i was in detention.
Long story short i was found with a credible fear and ICE released me on parole and issued me an I-94.
But my case was sent to the judge my forst court appearance is scheduled on November,2019. On 2016 i got married and my wife a USC filed I-130 and I-485 and my interview is schedule for October 2 in a couple of weeks but looking at this i think our lawyer did a wrong interpretation of the law and i feel im going to be put in hold for a long period after the interview.
Do you have any comments about my case, I will appreciate them.
Thank you.
Normally, a person who entered the US without a visa is not eligible to adjust status using form I-485. You would need to leave the US to get your GC. Maybe you meet an exception to the rule, but you might want to ask the lawyer about the basis for your eligibility to obtain a GC in the US. Even if you are not eligible, you can still process the I-130, and then maybe consider trying to leave the US to get your GC, but that is tricky, and of course, if the lawyer screwed up the I-485, which is pretty basic, you would want a different lawyer to help with the GC process. Take care, Jason
Jason,
I’ve a merit hearing for Sep 2020. In the mean time, I fall in love with a lady who has GC. We are deciding to get married, and we are expecting our baby girl! Should she be a U.S. citizen to marry me and change my status from immigration court to green card? What things should be considered/done for changing my status?
Talk to a lawyer, as it varies depending on the facts of the case. In general, if you are married to a person with a GC, you have to leave the US to get your own GC, and this you probably cannot do if you have a pending court case. If she becomes a US citizen, you can probably get your GC without leaving the US. There are exceptions to these general rules, so talk to a lawyer to see what is the best approach. Take care, Jason
Hello Jason,
Thank you for such a great article explaining so many details.
Let me please explain my situation and I will be very greatfull if you can give me a comment.
Around 2016 I applied for asylum based on LGBTQ prosecution in my home country. In the summer 2017 I field concurrent forms I-485/I-130 with the asylum case being pending.
After a year me and my spouse was finally invited to be interviewed. During the interview, of course, we were not approved with form I-485 due to the pending asylum case. After a long conversation with a supervisor of the office we were told to personally visit local asylum office and request the asylum case termination. They clearly stated that without closed asylum case attached to our I-130/I-485 we won’t get approval, he stated that it’s by the law.
We went to the Local Asylum office where we requested the withdrawal of the asylum case. We were told that this procedure most likely will take months or around a year! And they gave us a letter that they accepted our request. We also were told that we can write a request for expedite processing of the withdrawal.
I read your article and I skimmed through all comments and I couldn’t find a similar situation. All this events are literally 1 week old. That’s what is going on right now on a marriage based interview with an asylum pending case.
I’m scared of prolonged timelines and scared of my case going to proceedings.
I have not heard about an I-485 being denied due to a pending asylum case. The problem is that USCIS is being extremely strict and interpreting things in unpredictable ways. I would be curious to know what law the USCIS officer was referring to. If they have your file, or can get it from the asylum office, they should be able to make a decision. If he gave you a paper explaining what law is the basis for the denial, maybe if I knew that, I could tell you more (the law normally would be “INA” filed by a number with some letters and number in parenthesis). Take care, Jason
That’s exactly the case. The USCIS office requested the asylum case from the Asylum office, but they didn’t send it out. They explained it that they can’t send out a case that is open.
I-485 wasn’t denied, it’s pending right now.
We have not encountered this problem before. Maybe it is a new policy (that of course, has not been announced to the public). I would try your best to get the asylum office to transfer the file. Maybe try talking to a supervisor there. Good luck, and let us know what happens as that will help others. Thank you, Jason
You said “to try my best to get the asylum office to tranfer the file”. But how can i do it after the DHS denied my motion to terminate the asylum? And then my lawyer sent a separate motion to terminate but straight to the judge, but the judge still didn’t terminate it, referring to ” without the DHS approval she could’t terminate the case”.
I am now confused about whether the case is with the asylum office or the court. If it is with the asylum office, you might try talking to a supervisor to get them to terminate. If the case is in court, the judge needs to terminate, usually with the approval of DHS. Alternatively, the judge can schedule the case for an individual hearing based on the marriage case and the judge can grant the green card. Take care, Jason
Jason,
It has been 4 months since I’m waiting for my asylum case to be closed/withdrawn in NY office. Have you heard of anybody in the similar situations?
Thank you
Sometimes, they do not respond, and whether they will agree to close the case depends on whether you have another status. You can contact them, to follow up. You can find their contact info if you follow the link at right called Asylum Office Locator (under Asylum Seeker Resources). Take care, Jason
So what happened did they approve your I-130? Or both are on hold?
Jason, the case is in the court, not with an asylum office (since I failed my first asylum interview, was denied). And the judge already scheduled the Individual hearing for July 2020. I tried to terminate the asylum based on my marriage (I130 approved) with a motion to terminate , but the DHS didn’t approve the motion to terminate and the judge scheduled the individual hearing.
My main question was (since they didn’t terminate my asylum in the court): Will they give me a choice with what case to proceed during the Individual hearing (marriage or asylum) ???
or they didn’t terminate my asylum case for the reasons they have based on my failed first interview with an asylum office. And they are going to question me about my asylum case instead of the marriage so they could find the reasons not to give me a GC.
My bad, just saw your answer in another place
You can choose to do either or both cases, though normally if a person is eligible for a marriage case (and you might want to double check your eligibility), that is the easier path. Even of you do the marriage case, DHS can ask you about the asylum case. It is relevant because if the asylum case was fraudulent, then you would not be eligible for a GC based on marriage. Take care, Jason
Hi Jason, I have Individual hearing scheduled for July 2020. At the same time I have my I 130 approved. My lawyer filed the Motion to terminate but the DHS attorney opposed it and IJ didn’t approve our motion to terminate. So we filed I-485 during the Master Hearing.
My questions are:
1)Is the IJ supposed to give me a choice with what case to proceed during the Individual hearing for obtaining GC ?(asylum or marriage)
Since I feel way more comfortable to talk about my marriage then my past persecutions in my home country.
2) if yes, then why DHS attorney opposed and IJ didn’t approve my motion to Terminate in the very beginning?
Thank you sooo much for your time and the help you provide us !
1 – You can present whatever case you want. In this situation, probably you would present the marriage case and if that does not succeed, you can present the asylum case. The government attorney can cross examine you about the asylum case, and if the person is a jerk, they might do that. Whether the case is strong or weak may not matter, but they can check to see whether it is a fake case. If so, that would likely affect your ability to get a GC based on marriage. 2 – Maybe the DHS attorney suspects fraud in the asylum case, or maybe it is simply their policy to oppose termination based on an approved I-130. Your lawyer can try to talk to the DHS attorney to see what is the reason. Take care, Jason
Hello mr. Jason , as always thank you for all the invaluable information that you share.
My question is regarding Dimitrii post above…
You said he can present the marriage case, but if that doesn’t succeed, he can go forward with his asylum claim…
My question is , given the fact that he already have the I 130 approved, how could a marriage case fail in Immigration Court…
1) Will the IJ and DHS attorney cross examine him on the marriage case ( similar to the Stokes interview with Uscis) , and then fail,
OR
2) Failure would be based on the questions on the I-485, for example , found innadmissable for any reason based on the questions…
3) Also given the fact that he already has I I30 approved , and DHS still won’t terminate his proceedings, isn’t it better if he just withdraws the asylum case, and go forward on the Individual hearing with the marriage case only ? Will they cross question him on the asylum case anyway even if it is withdrawn?
Thank you again for everything you do for this community, you truly are a hero
1 – Many people who get an I-130 approved might still be denied a GC – if they have immigration or criminal issues, for example. The person could be examined in court about the marriage, the asylum case, or any other issues. 2 – That could be a reason. 3 – Whether he withdraws the asylum or not, DHS can still cross examine him on the asylum claim, so I would not withdraw the asylum. Instead, I would tell the judge and DHS that we will do the marriage case first and if – for some reason – that does not work out, we will pursue the asylum case. In this case, it may just be some procedure that needs to be corrected before DHS is willing to terminate proceedings. We have seen issues with that recently, and so maybe the person needs to pay the I-485 fee before DHS will agree to terminate, or maybe there is something else he has to do before they will terminate. Take care, Jason
Pls can you give me an email to reach you on, we have similar issues?
Thanks
Me? My email is jdzubow@dzubowlaw.com. Take care, Jason
Thanks Jason for great information. I hope you can guide me in my case. I have my case in immigration court for asylum. My family members my wife and kids are co applicants on my case. I am suffering from depression and PTSD and have not been in relationship with my wife for 2 years. She has been seeing one of her girlfriends lately here. If we divorce here and she marries this girl, how does it work for her and the kids for their status and how do I inform the court that they are not on my application or should I still have the kids on my case?
It depends, and you should probably talk to a lawyer if you have a court case. If your wife marries a US citizen, that person can probably sponsor your wife for a GC, and your children too, if they are minors and unmarried. But this is not always the case, and she would want to talk to a lawyer to make sure everything processes properly. As for you, if you are legally divorced, you can continue your case and your wife’s case should be separated from your case (and if you win asylum, she will not benefit from that). Your children could stay with your case or go with her. There are a lot of variables here, and so I recommend you talk to a lawyer, and your wife does too. Take care, Jason
Thanks Sir, what do you advise, should the lawyer be same for both the cases or she should seek help elsewhere?
Thanks Sir, what do you advise, should the lawyer be same for both the cases or she should seek help elsewhere?
I am not sure which cases you mean. Lawyers generally cannot represent clients if there is a conflict between the two people, and so if you get divorced, you may each need to use a new lawyer. Talk to the lawyer about this and your family. Take care, Jason
Hi Jason,
I have recently applied for asylum (Chicago office)
Receipt notice: July 15 2018
Biometrics: August 15 2018
I thought that under the new LIFO rule, I am supposed to receive my interview notice within 26 days but I didn’t receive it . Do you think my case was sent to the backlog or is it a usual timeline ?
PS: I am in status and filed before the 1-year bar
I think it is still too soon to know. Usually it takes a month or two to get the interview notice, but if you don’t have it in another month, I think it would be safe to say that you are in the backlog. Based on the most recent data, Chicago seems to be completing more cases than they are receiving, so maybe you will get an interview relatively soon, even if you land in the backlog. But of course, that is not very predictable. Take care, Jason
Hi Jason,
I have a question regarding adding a spouse to my case. My case was referred to an imigration judge and I was wondering if I should get married to my current girlfriend before the hearing so I could add her to my case.
Thank you!
You cannot add her to your case if you are in court. However, if you are legally married at the time asylum is granted, you can file an I-730 for her and then she can get asylum too. Hopefully you have a lawyer for court, and you can talk to the lawyer about this. Take care, Jason
Thank you for replying. I do have a lawyer:)
We are from the same country, if she gets the asylum she will not be able to visit our home country just like me?
Thank you again
A dependent can visit the home country with less risk than the principal, but I think the risk is not zero. She might be better off waiting until she is a citizen, or at least until she has a GC. She can keep the trip short and be prepared to answer questions on the return trip, if the border agents ask her. Take care, Jason
Hey Jason,
Will asylees and refugees still be exempt from being a public charge when applying for Green Card/Citizenship, if Trump’s proposal goes through?
I know the document states it doesn’t affect approved asylees and refuges, however, I am still reluctant to apply for government scholarships and programs. It’s very unfair since we also pay taxes and should have access to certain benefits. Not sure why they treat all the immigrants like 2nd class citizens… Anyway, please answer at your convenience, and thanks for all the hard work!
P.S I like the cleaner look of the website!
Al
No one knows – we need to wait for the final approval. My guess is that it will not apply to asylees and refugees, but whether it will apply to people who had asylum or refugee status and then got a GC based on that status, I do not know. It is unfair, and it is all part of their plan to dissuade people from coming to the US. Take care, Jason
Dear Jason,
I deeply appreciate your time, presence and kindness that you put here.
Can you take a look at the following link please
This Part:
E. Exceptions – 2. No Fault of His or Her Own or For Technical Reasons
“Technical violation resulting from inaction of USCIS;”
I filed my asylum while I was on legal status of B2 visa in May 2017 and still waiting for being invited for interview and I don’t have any other status now. Am I considered as an exception due to technical reasons for being out of status due to USCIS technical issue of inaction to Adjust to EB2? If no, why not ?
I think this is based on BIA precedent matter of L-K-, 23 I&N Dec. 677 (BIA 2004) and the following link is USCIS field policy manual for officers.
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter4.html
Hi Alex and Jason,
That is a very interesting point and a very good question for Jason, I have mentioned it before in this blog. For me, it seems very clear that is possible for asylum applicants to do adjustment of status without leaving the US. I am in the process (just started it some months ago) and I know 2 people that did it before. The law firm that my employer use for all the immigrant-related things says that indeed it is possible, However, a lot of layers think that is is not possible, it looks like is not clear for everybody. I am waiting for the Jason post about it to know the most recent Jason’s thoughts. In the meantime here my reasons why I believe that is really possible:
A key point here is the USCIS memorandum AD06-07 dated on July 14th, 2008 https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdf
“This memorandum clarifies how section 245(k) of the Immigration and Nationality Act (the Act)
renders certain section 245(c) bars to adjustment of status under section 245(a) inapplicable to
certain employment-based adjustment of status applicants.” This applies for EB-1 to EB-4 visas.
In the sixth page you can see:
“A period of unlawful status found to result only from a “technical violation” or through no fault of the applicant, as described in 8 CFR 245.1(d)(2), does not invoke the 245(c)(2) bar. Thus, such period does not count against the 180-day period.”
CFR 245 defines technical violation:
“A technical violation resulting from inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request). An individual whose refugee or asylum status has expired through passage of time, but whose status has not been revoked, will be considered to have gone out of status for a technical reason.”
Said that, asylum applicants that already received an interview decision are not able to do AOS, but applicants waiting for interviews can do it.
Thanks Jason for your comments on this.
It is a good question. My understanding is that USCIS will not allow an adjust under these circumstances, but there is certainly an argument here. I just have not heard of an example where USCIS accepts this argument and allows a person to adjust. If your lawyer thinks it is possible, he/she certainly may know more than me. I would be curious to hear what happens in the case and whether USCIS might allow it. Take care, Jason
Hi Jason,
I applied for asylum in 2015 and it is still pending, and my I-20 via F1 expired on May 2018. I maintained full time enrollment in the same program listed on my I-20 at all times, but I used the pending asylum EAD for part time job off-campus while I was full time student. Now I want to apply for NIW (I-140) and I-485. So does using the EAD from pending asylum considered as a violation of F1 status?
I think it does not. However, before you start spending money on the I-140 process, you should have a lawyer double check this and make sure you are eligible for the green card. Take care, Jason
Now my process is in the recruitment phase. I will post you once I am in the AOS phase, there is still a long way to go. Thanks, Jason
One more question, do you consider that asylum applicants waiting for an interview fall out of the status due to the inaction of USCIS?
This info is in the USCIS manual:
2. No Fault of His or Her Own or For Technical Reasons
No Fault Provision
An applicant’s failure to continuously maintain lawful immigration status or violation of nonimmigrant status may be excused only for the particular period of time under consideration if the applicant’s failure or violation was through no fault of his or her own or for technical reasons. [25]
The meaning of “other than through no fault of his or her own or for technical reasons” is limited to the following circumstances: [26]
•Inaction of another person or organization designated by regulation to act on behalf of an applicant or over whose actions the applicant has no control, if the inaction is acknowledged by that person or organization; [27]
•Technical violation resulting from inaction of USCIS;
•Technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from USCIS in person or by mail; or
•Technical violation resulting from legacy Immigration and Naturalization Service (INS)’s application of the 5-year or 6-year period of stay for certain H-1 nurses, if the nurse was re-instated to H-1 status as a result of the Immigration Amendments of 1988. [28]
If an officer determines that the applicant was out of status based solely on any of the above circumstances, the officer should annotate that determination on the adjustment application and adjudicate the application. [29]
I think you are making a good argument, but whether it will work, I do not know. There has been a lot of upheaval in terms of USCIS policies and procedures, that I think it is difficult to predict how they will treat a case involving a “technical violation” of status. It does seem possible to construct a path to adjustment of status based on this memo and the CFR, but whether USCIS will actually accept the argument, I do not know. Hopefully, you have a lawyer with experience in this realm who can construct a strong argument for you. Please do let us know how it turns out. Good luck, Jason
Maybe you can try to make that argument, but I doubt it will work. The pending asylum case means that you have no unlawful presence, so you may be eligible to apply for EB2, get the GC overseas, and then return (talk to a lawyer to be sure). But filing for asylum is not considered a status and so you do not have any lawful status here – and you need to be in lawful status in order to change to another status or adjust to a GC. I plan to post something on this topic later in the week. Perhaps you can try the argument you are making with USCIS, but I would talk to a lawyer first to see how best to approach that. If you do try, let us know what happens, as that will help others. One point in your favor is that if you have an I-539 application to change status pending, and no decision yet, you can file another I-539 (or probably an I-485 to adjust status) even if your original status has expired. I think that does not apply to a pending asylum case (I-589), but it might be worth looking into. Take care, Jason
Wonderful article! Waiting to read the other way out for GC through employer and relatives. I have a brother with a green card from DV lottery since 2013.
1- Can he sponsor my GC while I have a pending asylum since 1/2/18?
2- Or do I need to wait until he gets his US citizenship?
3- If so, do I need to travel overseas to get the GC through my brother?
Thanks
1 – Only a US citizen can sponsor a sibling, and the waiting period is 12+ years (you can see the wait times if you Google “DOS visa bulletin”). 2 – Wait until he is a US citizen. 3 – Probably. Unless you have some status in the US (aside from asylum pending) and you would need to maintain that status (or have some other status) until the 12+ years passes. In practical terms, this is probably not a path you will want to try, but you never know. Take care, Jason
Hi Jason and thank you for the great article. I am on immigration court on removal proceedings after I was not successful on my interview and will have a master hearing at the end of the month.
I was on common law marriage in my home country and I included my ex-wife in my asylum petition even though she was back in my home country. We have no certificate of marriage but have kids together, on my asylum petition I attached an affidavit showing we are married under common law. The marriage is not registered and thus not possible to divorce. After I left the law was changed and there was a requirement that all common law marriages must be registered and an affidavit can no longer be used as a proof of common law marriage. Our marriage was never registered as I had already left the country when the law was passed.
1. Can I marry a US citizen and thus apply for green card?
2. I had indicated I was married in my petition as an affidavit then was used as proof of common law in my home country, but it is no longer proof and marriage must now be registered, is my marriage still considered legal by US government while in my home country its is not as it is not registered as per the new law?
Thank you
1 – This is probably a question of marriage law from your country. If there is common law marriage, is there common law divorce? Can you get a certificate from your home country indicating that you are not married (and thus eligible to marry in the US)? I think you would probably need some written evidence to show that you are no longer married (or that you were never married) before you could marry in the US. 2 – I do not know – you should talk to a lawyer who does divorce law. Hopefully, you can find someone with experiencing doing foreign divorces, as that person may have insight about what you need to show that you are not married. Take care, Jason
Dear jason.Apreciated for your wonderful job.Helping people(Like us) without taking any fees.I am continue reader since 2014.Gained bunch of information from you.Salute jasaon!!Now i want to proceed my question.I applied asylum 2015.Came here through B2.But haven’t got interview yet.I got married 2017(culturally) and just get married in county(2018-waited my wife to be us citizen) Last month we applied i 130 and i 485 together.What is the further process they do and i saw unknown classification on my receipt i 485.Also i have questions about EAD-i have ead under c08 category and about to expire-Aprl 2019.what should i do to renew EAD,it’s okay to apply ander i 130 or renew under c08.sorry for asking long question!
I am not sure I understand all the questions. But if you filed the I-130 and I-485, you should get receipts, and then a fingerprint appointment. At some unpredictable time in the future (maybe a year or more), you will have an interview. As for the EAD, you can apply for an EAD based on the pending GC, and you can try to use your I-485 fee receipt to “pay” for that. However, USCIS often does not accept the fee receipt in lieu of payment, so you may have to pay for the EAD. If so, your better bet is to renew the c-08 EAD, as you get a 2-year card and you get an automatic extension of the old card once you get the receipt for the new EAD. Take care, Jason
Hey Jason
I came to the US as F-1 then filed for assylum in 2014, but haven’t had any interviews yet. I also have TPS which is soon to be ending next year. Recently, I have found a sponsor who could file me for EB- 3. can my sponsor still be able to file for me while my case is still pending? Do I have to withdraw my case since I have TPS for status adjustment? Does filing assylum case have any impacts on it? What if the USICS sends me a date for my interview while processing for EB 3 (in case I dont withdraw my case beforehand )? Can I still withdraw?
I ‘d really appreciate for your response.
Thank you
I will post something about this (hopefully) next week. Most likely, you would need to leave the US to get your GC. Whether that is possible in your case, I do not know, but you should talk to a lawyer to see how you would do that. I doubt you would want to withdraw the asylum case, as that would leave you in unlawful status once TPS is done. If you did get an interview in the middle of the EB3 process, you would probably have to attend the interview and try your best to win, as most asylum offices will not delay a case when another application is pending. I do not know if that is the policy for all asylum offices, though – you would have to ask your particular office if the situation arises. Take care, Jason
Hey in what office you submitted your application? Just wondering, since they haven’t published affirmative asylum bulletin later.
Thanks Jason for this informative post. Really looking forward to see next post in this series to see how to get green card by having approved I-140 while in court.
Hi Jason,
We applied for green card on June/2017. It is as of now under process. July/2017 USCIS ask for additional evidence. Medical exam as expired that I send to them on August 14. But the problem is that in the on line ” case status check “they updated three . Still my daughter case is no updated whereas evidence sent at same time with same pouch through USPS. Should I call them to check or just simply wait.
Thanks,
SM
I don’t know that calling will help, but it shouldn’t hurt. You want to be sure that USCIS received everything and matched it with the appropriate case. Each of you has your own case, and so if you sent evidence together, it may have ended up only with one person’s case unless it was clearly marked. Take care, Jason
Hi Jason,
I’ve entered the country on B2 visa and later on filed for asylum back on 2013. My case got referred to an IJ on 2015 and placed in removal proceeding for overstaying my B2 visa. After Master hearing the merit hearing got scheduled for mid 2018, later on the date got changed to 2021. Recently I have received an approval for H1B with change of status from USCIS, my new I-94 shows that i’m on valid H1B for two years.
1- Can I keep both H1B and Asylum case in court.
2- Can I travel and come back to US based on my H1B while my case is still active in court.
3- How to switch my wife status to H1B based my H1B approval while in US
4- Do I need to get a visa to come back to US, or my new I94 is enough
5- If I decided to cancel my Asylum case and switch to H1B, will that be doable and how .
I know its too much to answer, but any help will be appreciated.
Thanks
1 – Normally, if you are in court, you are out of status, so I do not know how you can get an H1b without leaving the US. You might ask the lawyer to clarify this. In general, in court, you can apply for more than one form of relief. 2 – I highly doubt it – if you have a case in court and you leave, it is generally considered a deport order. 3 – I do not know about H1b visas, but if you have an H1b (and I do not know that you do, given the court case), I think your wife could get an H4. but to do that, she cannot be out of status or in immigration court. 4 – If you leave while you have a court case, you may deport yourself, and then you will be barred from returning for 10 years. 5 – I have no idea. In short, I do not think you can get an H1b visa while you have a pending court case (unless you leave the US to do it, and you have to arrange in advance to leave with “voluntary departure” so you don’t end up with a deport order. I think you need to talk this through with a lawyer to know your options. Take care, Jason
USCIS might have approved your change of status in error. If the DHS attorney found out they could ask USCIS to revoke such approval. The Service Center Director could also revoke such approval upon review. Also your I-129 could be approved, but not change of status. Make sure which one the USCIS approved.
Hi Jason,
I have a pending asylum case from 2016, and it’s time to apply for my EAD renewal. I am married with two kids and my family is with me. Do I need to apply for my kids EAD again? They are 16 and 6 years old.
Thanks again for all of your efforts for us.
David
You can apply to renew for your children if you/they want to. I can see why your 16 year old might want an EAD, but if your 6 year old is like mine, he/she probably does not need it (though I am encouraging mine to get a job and start pulling her weight). Take care, Jason
EAD is a valid id and can be used for domestic flights. Also, for some kind of medical insurance, a valid US Id could be necessary. If your children do not have a valid passport, it could be a good reason to get an EAD, I think.
Thanks
Thanks Jason
Is there any hope for someone who came to the US on a J1 visa (subject to 2 years) to get Green Card through marriage after applying for an asylum?
Very difficult (especially in Trump Era). Your only option is to get it with Asylum ( 2 year rule is erased with Asylum grant). If you decided to do it with Marriage, you are subject to 2 years rule and have to go back to your country and stay there for 2 years ( if you can stay there, USCIS will assume your filed fake asylum claim and you are barred from entering the US again forever). You can wave this 2 years rule if you are still in J1 status and your DS-2019 document is not expired ( you can google for waver). Once your J1 visa expires, there is no waver.
Sure, but you would need a waiver of the two-year home residency requirement. If you win asylum, the two-year rule does not apply, but I am not sure if you are then required to adjust status (to get the GC) based on asylum or you can also do that based on marriage. Take care, Jason
Hi, Jason. Could you please be so kind and share your thoughts on USCIS asylum cases processing time? I heard different time frames and I am absolutely confused. Some asylum seekers who applied back in 2017 had their interviews already, and a lot of 2018 applicants are still waiting. I applied in September New York office, and I am waiting for a interview. But I heard about people applying in July or May 2017 and already receiving interview notice (without expediting case). What do you think is going on? Based on your experience, when do you think I might get interview? Thank you.
No one knows. I wrote about this on February 28, 2018. I can’t say I know more now than I knew then, though I do think all offices are following LIFO, and I think that most offices are not interviewing any backlog cases. Take care, Jason
Hi Jason, I’ve some questions
1/ my case was referred from USCIS(Arlington) to Baltimore court but They’ve not sent me a date to appear for the last 6months so whom shall I call(number or link) to know when to appear?
2/ whenever I renew my EAD I write (C)(8) on category but now my case is recently referred to court and I’ll renew my EAD soon! So that (C)(8) thing will remain the same or is there any change on the form since my case is transferred now?
3/ I recently learnt that I can pay online with credit/debit card for renewing my EAD so does this mean I can file the renewal process online or I still have to mail the documents and pay the payment online?
4/ Is there anything that you want me to be careful during filling the renewal form?
Your help is appreciated as usual!
1 – There is a computer system and you can call to check: 800-898-7180. Enter your Alien number and push 1 – it will tell you about your next hearing. The court should also send you a letter in the mail with the next court date, so make sure to update your address using form EOIR-33 (you have to Google that). 2 – It remains the same. 3 – I am old school and am not doing that online, so I do not know. 4 – The new I-765 form has a question about arrests. If you have a political arrest, it is unclear what to do about that. If you have this issue as part of your case, you might want to talk to a lawyer about it. Take care, Jason
Comments on (3)…
No I765 can only be filed on paper (the government is on progress of expanding online filing, they might offer I-765 online in the future).
I would not recommend you file with credit card, especially if your card issuer have fraud detection feature.
They might decline the transaction due to suspected fraud and your application will be rejected, they will not re-try your payment.
Ensure your card issuer do not block the transaction. Otherwise it’s safer to send a check if possible.
Hi Jason,
How long does it take to process family reunion after an asylee is granted refugee status?
Thanks,
Ali
Like everything, it seems to be getting slower. You can check the processing time for the I-730 at http://www.uscis.gov (I think it is in the range of 6 to 12 months). That is the first step. The second step is at the embassy, and processing times there vary, but most cases are probably completed in 3 or 4 months. Take care, Jason
Hi Jason,
Thank you for the article,
Last week NBC news issued an article about new regulations from Trump Administration regarding the (public charge) and that will affect the applicants of green card and naturalization, and the leaked draft of the new regulations is very tough, do you think this new regulations will affect the refugees and asylees how used the public assistance in the past when they will apply for the green card and citizenship or they will stay exempted from the public charge rule?
Thank you very much
I have not seen it yet, but my understanding is that such rules would not apply to asylees (though whether it applies to people who get Sa GC based on asylum, I do not know). Also, until they issue the actual rule, we really cannot know how it will affect people, especially since it might be subject to a challenge in court. Take care, Jason
Refugees and asylees are exempt from public charge according to their draft below. I’d really appreciate if Jason could elaborate whether there is a workaround for them to impose this regulation on asylees and refugees as well. See the PDF below.
“Table 21. Classes of Applicants for Admission, Adjustment of Status, or Registry Exempt from Inadmissibility Based on Public Charge According To Statute or Regulation.”
Refugees and asylees as follows: at the time admission under section 207 of the Act (refugees) or grant under section 208 of the Act (asylees adjustment of status to lawful permanent resident under sections 207(c)(3) and 209(c) of the Act;
https://assets.documentcloud.org/documents/4413837/Read-the-Trump-administration-s-draft-proposal.pdf
Once they issue the final rule, I will try to write something about this. Until then, it is really too much of a moving target to know. Take care, Jason