This is the final installment in a three-part series about getting a Green Card while asylum is pending. Part 1 covered marriage to a U.S. citizen (or a petition by another “immediate relative”). Part 2 discussed other bases for a Green Card. Here, I will talk about leaving the U.S. to get a Green Card at a U.S. embassy.
Some non-citizens are eligible for a Green Card only if they leave the United States and process their case at an embassy overseas. This is generally because the law does not allow a person who is “out of status” to “adjust status” and get the Green Card in the U.S. As I discussed previously, a pending asylum case does not confer status on the applicant, and so certain asylum seekers must leave the U.S. if they hope to get a Green Card based on a family relationship, a job or some other basis.
Of course, if possible, it is safer to get your Green Card in the United States. But if that is not an option, and you must leave the country to process your case, how do you know whether you can return? What is the safest way to leave and come back to the U.S.? And what about asylum seekers who cannot go to the U.S. embassy in their home country?
First and most important, if you plan to leave the U.S., you should understand that you are taking a risk. From a legal perspective, it is a lot easier to prevent you from returning than to kick you out once you are here. For this reason, it is imperative to talk to a lawyer before leaving the country to process a Green Card application. Make sure the lawyer explains the basis for your eligibility, and explains each step of the process (and preferably puts it all in writing). You need to know how you are eligible for the Green Card, and how you can leave and return safely. Also, you should think about a back-up plan: What if the Green Card is denied? How will you return to the U.S. then?
Keep in mind that whether a person can successfully leave and return depends on many factors specific to the case: Do you have a 3/10 year bar? Are you eligible for a provisional waiver or some other waiver? Are there any other bars to obtaining the Green Card or re-entering the U.S.? Might there be a prior deportation order? All this needs to be discussed with a lawyer, and if you have any doubts about your prior immigration history, you should file a Freedom of Information Act request to get a copy of your file. You don’t want to leave the U.S. unless you are pretty certain that you can return.
Assuming you are eligible to leave and process your case at a U.S. embassy overseas, what happens if something goes wrong? Sometimes, people who seem eligible for consular processing arrive at the embassy and learn that there are problems with the case. Such people can get stuck outside the United States. Sometimes, a case can be un-stuck, but other times, there is no way to return. What then? If you have a pending asylum case, you can apply for Advance Parole (“AP”) before you leave the United States. AP is permission to leave the U.S. and re-enter later on. If you have AP, and if something goes wrong at the embassy, you can still return to the United States using AP as your “back up” plan.
I wrote about AP here, but since I wrote that article, things have gotten more difficult for AP applicants. USCIS seems more reluctant to issue AP, and when it is issued, it is granted for a shorter period of time. Also, the processing time for an AP application is unpredictable. For these reasons, it is more difficult to coordinate the consular processing and the AP so that they occur at the same time. But if you can do that, it will avoid the possibility of getting stuck overseas in the event that something goes wrong with the Green Card case.
Finally, asylum seekers have a special problem when it comes to consular processing. Normally, a person would process her case at the U.S. embassy in her home country. But asylum seekers have told the U.S. government that they fear harm in their home country. What to do?
One choice is to try processing the case in the home country anyway. Depending on the asylum case, you might be able to argue (to the U.S. government) that it is safe for you to visit the country for a short trip, but you cannot life there over the long term. Obviously, this reasoning works better where the persecutor is a non-government actor. If the persecutor is the government, they could presumably arrest you as soon as you arrive at the airport.
But even if the persecutor is not the government, returning to the home country involves some risk to your immigration status. The U.S. government may conclude that your original asylum application was fraudulent (since you voluntarily returned to your country). This could result in a denial of your asylum claim and a denial of any other application for an immigration benefit. So it is preferable to process your case in a third country.
However, processing the case in a third country is not always easy. If you are trying that, you would be well-advised to talk to a lawyer who has significant experience with consular processing. The benefit of processing the case in a third country is that it is (presumably) safer, since no one is trying to harm you in the third country, and you avoid the problem of the U.S. government suspecting that your asylum case was fake. The down side is that if the consular processing fails, you will be stuck in a third country. Another down side is that you may need a visa to visit the third country. Coordinating the visa, the consular processing, and the AP sounds like a real challenge, but if the stars align, this would probably be the safest way for an asylum seeker to obtain a Green Card overseas.
One last point. While I have been referring to obtaining the Green Card overseas, this is not exactly what happens. If the consular processing is successful, you will receive a packet, which you bring with you when you come to the United States. The packet is opened at the port of entry, and if all goes well, you should get your lawful permanent resident status at that time (in the form of a stamp in the passport). The actual Green Card comes later by mail.
So that’s it. There are alternatives to asylum available to some applicants, and those paths are worth considering. However, they are often tricky, and so it would be a good idea to talk to a lawyer to assist you with the process.
Hi Jason
Thank you for your time to answer my question. I had granted asylum just one month ago. Can I apply for GC now? A friend told me that I can apply now because of the long queue.
Thank you
You can, but if USCIS decides your case before you have one year of physical presence in the US, it is possible that the GC will be denied. USCIS has not clarified this – I wrote about this issue on February 8, 2023. Take care, Jason
Hi Jason,I came to the US with student visa and then apply for asylum while I were on status,I dont have any status anymore.I also have i140 approved through NIW.I have decided to go overseas for US embassy.I am Iranian and we dont have US embassy in Iran so I dont have no option other than going to third country.I want to know:
1.what is the chance of AP approval for going through Cosular processing these days?Is leaving the US for embassy interview a good reason for USCIS?
2.how many months it will take to get the advanced parol?
3.As far as I know,From the time of starting the process of National visa center to reciving the interview can take around one year for Iranians in Us embassy in Armenia,I want to know whether can i stay in the USA during this period? Or I need to leave the USA as soon as I start tge NVC process?
4.Most Iranians will go through FBI check(Administrative process)after tge interview which can take 1 or 2 years!!I want to k ow that if I go throght this process,Can I re-enter with AP right after my interview?Or I need to wait?
5.Is there any chance of rejection NIW green card at US embassy? For example family immigration green cards normally does not have rejections unless there is security problems.How it is like for NIW process?
6.I need to renew my Iranian passport to go to Armenia(Armenia does not need visa for Iranians but I nees my passport to enter).Is there any problem of renewing my Iranian passport since I have asylum pending applocantion?
7.Is there anyother way of entering Armenia without renewing my Iranian passport?
Thanks a lot for your help
1 – You have to give a “humanitarian reason” for AP, and I doubt consular processing would qualify. Maybe you can have other reasons – such as visiting a sick relative in a third country. Just because you list a reason on the I-131 form does not mean you have to go visit that person. I wrote more about this on September 11, 2017. 2 – Typically it takes a year or longer, but you can ask to expedite. I wrote about expediting in general on January 29, 2020. 3 – You can stay in the US. 4 – As long as AP is valid, you can re-enter the US (you also need a passport to travel). 5 – I do not do such cases and I do not know, but there is always a chance for rejection. 6 – This could affect your asylum case. You may need to explain why you renewed your passport and why your government was willing to give you a new passport. I do think it is unlikely to have an effect, but it depends on the case, and you should at least be prepared to answer those questions. You may also need to explain this when you go to the Embassy for your NIW case. 7 – I doubt it, but I do not know. You would have to check the Armenian embassy website, which should explain about travel requirements. Take care, Jason
Hi Jason, Thanks a lot for sharing your precious information to us. I have some questions about my situation.I came to the US one month ago with J1 visa.This visa is only valid for one year and I need to extend it each year.
Since I can not come back to my country because of government, I want to apply for asylum but I want to stay on my valid Status(J1 status) at the same time.This is very important for me.I want ti know:
1.If I apply for Asylum,Am I eligible to extend my J1 visa after one year?Since applying for asylum indicate immigration intent .So I don’t know how this impact at the time I want to extend my J1 visa.
2.I also want to file i140 form and try my chance for EB2-NIW since I have some publications,Can I apply for asylum and NIW at the same time?Or they may be a legal problem?
3.I know that there is 90 days rule which says people who came to the US recently should not show intention of immigration. Some people told me to not to apply for NIW right now and wait another 2 months ,so that 90 days will be finished.What is the policy for asylum?Should I wait 90 days and then apply for asylum or I can apply right now?
Thanks a lot for you help and support.
1 – I do not know that there is a definitive answer. Seeking asylum expresses an intent to remain here permanently, which is not consistent with a J-1 visa, and which could cause USCIS to deny the extension. On the other hand, I have had clients extend their non-immigrant status while they have an asylum pending case. I do think there is a risk that USCIS would refuse to extend the J-1, and I do not know that there is a definitive answer here (there often is not), but you could have a lawyer research this to see whether there is any guidance from USCIS. 2 – There is no conflict between asylum and a GC application based on a NIW, so you can do both. 3 – We have never had an issue with a client applying for asylum shortly after arriving. Also, I do not recollect all the details for this rule, but it involves a series of presumptions about your “immigration intent” based on when you file for permanent status. I do not know that you necessarily need to wait 90 days, but I do not recall the exact time frames. The point is that if you apply too soon, USCIS may presume that you had an immigration intent at the time you entered the US on a non-immigrant visa, and that you committed fraud (by lying about that intent). Certainly, it is worth discussing with a lawyer to know the exact time line, especially if you want to try to file sooner than 90 days. Take care, Jason
Hi, quick question,
I am pending asylee since 2016 and now I have i-140 approved.
Can I request AP to do consular processing in CA?
And if I don’t get GC in consular processing in Canada, will they allow me to enter US with AP 100%? What happens with grounds of inadmisability for overstaying at that point?
And what is wait period in CA for consular processing once when interview is done?
Thank you!
You can try that, though it is not easy to coordinate AP with the consular processing. If consular processing fails and you have valid AP, you can return to the US. I have never heard about someone with a valid AP document being refused entry. You would need to coordinate the effort with a lawyer who can help with consular processing. In terms of time frames for processing, I think it varies by embassy and by case, and so I do not know. Take care, Jason
Hi,
Did you try applying for AOS using I-485? I have seen in forums where people have successfully done their AOS while pending asylum.
I have approved I-140, pending asylum since 2016, and now applying for AOS.
Thanks
Xee
Each case is specific – if you are still in lawful status (and asylum pending does not count), you can probably adjust status. But if your status has expired, you are probably not eligible to adjust status and – assuming you are eligible – would have to leave the US to get a green card. I wrote about these issues on August 28, 2018 and September 6, 2018. Take care, Jason
Hey Alex! How was experience with consulate processing? My Asylum case is pending since 2017 and I’m about to have I140.
Hello Jason,
I entered on student visa and currently only have asylum pending as my only way to stay in the US. Meanwhile ,My employer filed and got my H1B approved.
Now I am trying to see how can I go for interview. I am planning to goto third country for that (my current designated consulate is home country but planning to change that). My questions are –
1) If I just go for the interview in the third country without AP, is it a risk to come back considering that I overstayed my visa by filing asylum ?
2) My grandfather just passed away few days ago, I want to apply for emergency (same day) AP on that basis and also goto third country for interview once I schedule it. Would that be okay?
My current lawyer only knows about employment based petitions, so I am a little worried about my situation.
1 – Yes. If the H1b is denied, you will not be able to return to the US. That is the point of AP – it is a backup plan in case the H1b fails. 2 – Once you get AP, you can go wherever you want (as long as this does not make USCIS think you committed a fraud on the AP application or the asylum case), and so if you got AP for your grandfather’s funeral, you could use it to also do the visa interview, assuming it is still valid. 3 – It is a problem for us lawyers – we tend to overspecialize. Maybe you want to involve another lawyer who can help with AP and/or consular processing. Take care, Jason
Is 3/10 year bar waived for asylum based APs?
The bar is not waived, but if you leave and return using AP, the bar does not apply. If you leave and try to return some other way (like with a visa or green card from the embassy), the bar does apply, and you would need a waiver to enter the US. Take care, Jason
Hi Jason, I recently got married and I have asylum pending I need advise as to what I do next. Confused about the forms i30 and i485. I have a son that I want to include in my applications, do I fill in separate forms for him? Do I apply with both forms or just 1? If it’s one which one is it. My current Work permit is valid till August. Please help I’m very confused.
I do not have enough info to really know, so you might talk to a lawyer about that. Assuming you and your son are eligible (which I do not know), your wife (his step mom) can file for both of you. That is form I-130. You would also need form I-485 and several other forms (normally, I-864, I-765, I-131, maybe others depending on the case). If you check the instructions for the I-130 and I-485, that should give you a pretty good idea about what to do. Take care, Jason
Hi I have a pending asylum case for more than 4 years and my husband get the i140 approval ( he is not the primary applicant) can we go for consular processing at home country or 3rd country
That depends on various factors, as discussed above. I think you should talk to a lawyer to make sure you are both eligible to do that before you try. Take care, Jason
Hi Naglaa,
How did this go,im i a similar situation
hi J,
thanks for the advices you do give it helps a lot.
I got my ead card and my Ssn working now
but have not used up to one year of my work permit and Ssn I got a letter yesterday from USCIS saying they schedule my interview for nov 27 2018 and I read in the USCIS website saying an alyslum seeker would work one year before applying for green card so now am confused because my interview is in nov 27 and have not used one year of my work permit can you please make me understand about the letter from USCIS
thanks
Maybe you misunderstood. If you win asylum, you have to wait one year and then you can apply for the GC. The waiting time before the interview and decision does not count towards this one year period. Take care, Jason
Hi Jason, thank you for this useful web. a person who has pending asylum in immigration court colud deemed unlawful presence and trigger 3/10 years bar?
He could, but it would depend on when/how he entered, when his visa expired, and when he filed for asylum. If he entered lawfully with a visa and filed asylum while still in-status (or less than 180 days after going out of status), he should not be subject to the bar. However, each case must be looked at individually to determine this. Take care, Jason
Hey Jason,
Appreciate all your help here. My employer is in process of filing Employment based GC for me and I only have pending asylum as basis to remain in the US right now. However, I entered legally and don’t believe I have 3/10 years bar.
When I reach consular processing step, can I apply for Advanced Parole(AP) based on pending asylum for business travel? Is humanitarian reasons THE ONLY basis to apply for AP? Can you refer me to USCIS doc about it?
Thank you so much
If the AP is based on the pending asylum case, you need to give a humanitarian reason. You would do well to find a sick relative outside the US, get a doctor’s note about that, and use that as the basis for the AP – not the pending GC case. I did a post last week where I discuss a bit about AP. The short story is that it has become more difficult to get and more unreliable, and so coordinating with the consular processing may not be easy. It is still worth trying, but you need to be care and be lucky for everything to align. Take care, Jason
Hi Tori,
I have a sick relative in my home country (where I am seeking asylum from). Can I use a letter from doctor from my home country for AP and use that to travel to Canada to do the consular processing as well?
Thanks,
Tori
I am not sure I understand the question, but if you have AP, you can travel to any country that will allow you in. AP only allows you to return to the US; it does not act as a visa. So if they give you AP and in the I-131, you said you wanted to visit France, but then you visit Canada instead, I do not think that would be an issue. I do suppose they could ask you about it, but I have never heard of anyone having a problem for this reason. Take care, Jason
Anyone from Colorado who applied in January 2018 that has got his interview?, I applied in January got biometric in early Feb, got my EAD in AUGUST, but up to now no interview notice.
I know that Colorado is a circuit ride, but Jason any idea of if our cases are in the backlog or in the new system, my case has so far been pending for 9 months so far in the Houston office, do you think I should inquire or just wait?
My understanding is that if you do not have an interview after 2 or 3 months, then you are in the backlog. The circuit ride cases might be handled differently, though, but I am not sure. Maybe you can email the asylum office and ask. You can find their contact info if you follow the link at right called Asylum Office Locator (under Asylum Seeker Resources). If you learn anything, let us know as that will help others. Thank you, Jason
Thank you Jason,
I will ask them again and let you know.. I have already asked once am juts wondering what they will think of I keep asking.
Thanks again
Or as you have suggested let me wait for the 2 months and after that enquire.
I really don’t know how they are treating us in the circuit ride.
hi Jason
I did interview in January 2018 no decision yet, can I sue the asylum office to the federal court ?
if yes is the sue effect on them decision ?
regards
First, you can try to contact the asylum office and inquire about your case. You can find their contact info if you follow the link at right called Asylum Office Locator (under Asylum Seeker Resources). I plan to post something about these types of law suits this week, so check back in a few days. Take care, Jason