This post is by Lindsay M. Harris, asylum attorney extraordinaire–
Over the summer, the U.S. government proposed a set of regulations that will dramatically change asylum law. In response, the general public and immigrant advocates submitted close to 90,000 public comments. After receiving the comments, the government changed some of the proposed rules (slightly), but the new rules are set to go into effect on January 11, 2021.
There will likely be legal challenges (lawsuits) to try to stop these regulations from going into effect. But, it’s always hard to tell what will happen. For that reason, if you plan to file for asylum, it is best to do so before January 11, when the new rules go into effect.
One of the changes made between July 15, 2020 (the proposed rule) and December 2020 (the final rule) is that the new rules will not be retroactive. This means that they will not apply to anyone who has filed their I-589 application for asylum before January 11, 2021. The government has stated that the new rules will apply now, despite any legal challenges to any sections that the government views as simply codifying existing case law–
Although the rulemaking itself is not retroactive, nothing in the rule precludes adjudicators from applying existing authority codified by the rule to pending cases, independent of the prospective application of the rule. Accordingly, the statutory authority and case law incorporated into the rule, as reflected in both the [notice of proposed rulemaking] and the final rule, would continue to apply if the rule itself does not go into effect as scheduled.
Regardless of retroactivity issues, it is likely much better for asylum seekers to have their applications filed prior to January 11, 2021. This is especially true for people fleeing harm from non-government actors, for asylum seekers fleeing gender-based harm, and for individuals who have spent time in another country before coming to the United States.
If you are seeking asylum, please consult with an immigration attorney as soon as possible. An I-589 asylum application takes hours to properly fill out, and you will need to have time to work with an attorney to prepare your application and get it mailed before January 11, 2021.
If you are an asylum seeker in need of assistance, please contact Lindsay.Harris@udc.edu, Vice-Chair of the American Immigration Lawyers Association’s National Asylum & Refugee Committee and Associate Professor and Director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.
Hi Jason
I am Tedela. as many do I would say I was helped out here numerous times by the bundle of information you unceasingly provided.
I am asylee whom my case was referred to IC. and I got engaged and going to get married this coming summer. with that being said I like to ask you if my feyoncé can be able to send an invitation to my mom whom I am very much indebted to and want her to be at my wedding day? my feyoncé is a US citizen working in the energy industry and I am working in IT.
Thanks for your insight and advice in advance
You or your fiance could invite your mother here, but she would have to apply for a visa like anyone else. The fact that you applied for asylum may make it more difficult for her to get a visa, but usually that is worse problem for spouses and children than for parents. So hopefully, she can get a visa. Take care, Jason
Hi Jason,
I filed my application in early 2017, and haven’t had an interview yet but I have a work permit for a pending application. I read earlier that the administration proposed a rule to changing the work permit process, and there was a lawsuit “Casa de Maryland vs Wolf” that challenged the rule. The court issued an injunction to that rule, but it only applied to the plaintiffs in the case. I also recently read that Immigration Equality and several advocacy groups filed a lawsuit challenging the gender-based asylum rule, and a judge in california issued an injunction. See the link here https://immigrationequality.org/press/federal-judge-blocks-trump-administrations-death-to-asylum-rule/
My questions are: Would the rule that changed work permit eligibility (one-year wait etc) affect people like me that filed before 2019 that are waiting for an interview? Also, does the recent lawsuit invalidate both rules that they issued? I’m not too familiar with the legalese but any clarity you can offer would help. Thanks so much!!
The rule would not affect you, though it does affect the filing fee to renew. You will have to wait to see how all that is sorted out by the courts and the Biden Administration. I wrote more about this issue on September 23, 2020. Take care, Jason
Hello Jason,
First of all thank you for all your help and support!.
Question: i have applied asylum on 2017 and I got interviewed. Asylum officer referred my case to immigration judge. My individual hearing is in 2022. Since the new rules will take effect on Jan 11, Is there a chance judge take a decision on my case after Jan 11, 2021 without interviewing me? What can I expect?
I do not see how the new rules would allow a judge to simply deny the case. Also, most of the new rules are not retroactive, and so they would only apply to people who file for asylum after January 11, 2021. I guess I think you do not need to worry about this. Take care, Jason
dear Jason,
I have been hearing that the new Biden administration is gonna make radical changes to the asylum system. i heard that Biden will revert back to FIFO system for handling asylum interview dates instead of the LIFO system which Trump administrayion brought. Did you also hear that?
I have not seen any news about LIFO or FIFO under the new Administration and I think there has been no decision about that issue yet. If I hear any news, I will try to post it here. Take care, Jason
Hello
I have a quick question. I got my asylum interview last year on December 2019. Still I don’t have any answer from the asylum office. Is it normal? Are the new rules which are going in effect on 11 January 2021 forward have any effecting issue to our interview result.
What should I do legally or administrative way to get some progress?
Thanks in advance
Best
Unfortunately, it is pretty common, especially for people (men) from majority Muslim countries. You can contact the asylum office to ask about the case – Follow the link at right called Asylum Office Locator. Also, you can try the USCIS Ombudsman; a link is also at right. If all else fails, you can try a mandamus lawsuit. We wrote about that on October 2, 2018. Take care, Jason
Hello Jason,
I have pending asylum with san francisco office since May 2017. I entered US on valid H1-B visa which has expired in 2017. My spouse recently has been approved for H1 EAD and will be able to file for Green card once the priority date becomes current. As his spouse, would i be able to concurrently get Green card along with him once he files for it? Please let me know.
I can’t tell from your message. Normally, if a person gets an employment based GC, the spouse is also eligible to get a GC, but you have to be legally eligible for the benefit. That means that you have to be lawfully present in the US (asylum pending does not count as lawfully present for this purpose). So if your H1b has ended and you are no longer lawfully here on that visa, you probably cannot get the GC inside the US. You may be able to get it by leaving the US. There are exceptions to all these rules, and you will need to talk to a lawyer about the specifics of your case to know. Also, I did some posts about getting a GC while asylum was pending – on August 28, 2018 and September 6, 2018. Maybe those would be helpful. Take care, Jason
Hi Jason,
I was granted Asylum in New jersey (newark office), i did not file for my GC because i was planning to move o Cali, Now i have moved recently to San Diego California, all My Documents have expired (EAD, RTD), Luckily i was able to acquire California Driving License.
Would you recommend filing for GC and RTD all together? as 1 fee included both, Right?
Thank you!
Yes – why not. If you pay the I-485 fee, you can get an RTD (form I-131) at no extra cost. We used to also get an EAD for no extra cost, but as far as I can tell, that does not work any more. You might double check the I-765 instructions to see whether it is possible, just to be certain. Take care, Jason
What’s the filing time requirement for asylum applicants C(8) category to renew EAD?
The soonest you can file to renew is 180 days before the old card expires. Take care, Jason
Hi Jason,
Thank you for your time and affords on updating on us about the changes on Asylum in the US.
I have applied for asylum on April 2016 and still have not been interviewed yet.
My wife who is a derivative on my application on the initial application wants to apply Asylum on her own
based on FGM, My question does my wife has a chance to submit a new application even do we have
passed the one year deadline and if we can’t submit now a new application, can we add my wife claims to
my application?
If my wife can submit a new application does the deadline for Jan 11 2021 still apply to us?
Thank you for clarifying this question.
She cannot apply for another Asylum application. Since you are the main applicant you will be mainly interviewed, also if your attorney put you as the main applicant it was probably because you have a stronger claim. You will both have a chance to present your claim when you have your interview or if and when you are referred to the court.
Thank you for getting back to me. I wasn’t sure if she could present her case the same time, i was thinking we could both apply and become each other derivative on both application just to increase the chance. I am not sure if this is how it should go but i was checking for advise on how to proceed with the date line of Jan 11 2021.
Regards
I think this will not work, as they will join anything she files with you. It is easier to file an independent case in court, but hopefully, you will not ever have to go there. Take care, Jason
She can submit a new application, and the one-year bar should not be an issue, as she has been here as a derivative of your case. I do think the January 11 deadline may be relevant to her case, since she is probably not fearful of the government, but rather is fearful of people who performed the FGM, but I do not know her story, so I am not sure. The problem, though, is that the procedure for filing is different for a derivative than for a first-time applicant, and her case will likely just be joined with yours in the backlog. For this reason, it is very unlikely that filing now would help her get an interview, and in general, it is probably not worthwhile, unless you think she has a very strong case and you do not. I think the I-589 instructions, available at http://www.uscis.gov, probably do not talk about filing as a derivative, but maybe they do and you might want to check. If not, you can email the asylum office and ask what to do. You can find their email if you follow the link at right called Asylum Office Locator. Take care, Jason
Hi Jason.
I filed for asylum in December of 2016 (SF office). It’s been 4 years now and I still don’t know when the interview will be conducted. Do you know what’s the current wait time for people who filed before the changes to the queue in 2018?
Also, I’ve moved to Hawai’i for a few months. Do you know if there are any additional things I need to do other than filing the AR-11 form? Is my case still in the SF office?
I look forward to your response, thank you!
There is no more scheduling bulletin, and so there is no way to know about wait times. You can try to expedite – I wrote about that on March 30, 2017. You can check which office has your case with the Asylum Office Locator. A link to that is at right. Other than filing the AR-11, there is nothing to do. If the move is temporary and you keep your old address, it is probably safer not to file the AR-11, but that depends on the circumstances. Take care, Jason
Hi Jason,
Can you please recommend a good asylum attorney in the San Francisco bay area.
I do not know a lawyer there – you can start with AILA.org. Also, there is the Center for Gender & Refugee Studies at the University of Hastings Law School. Maybe they can take the case or recommend someone who can. Take care, Jason
Hi Jason
First of all, I appreciate your help here.
I filed for asylum in 2017 while my B2 admission was still valid but later while waiting for the interview my B2 status expired and I have no other status.
My workplace has applied for EB2 and they have got i140 approved now and I want to file i485 for AOS based on EB2. I know that I should have legal status to do the adjustment of status but I optimistic that I might be able to use the exception of being out of status because of “Technical Violation Resulting from Inaction of USCIS” and using BIA interpretation of USCIS inaction under reasoning under BIA matter of L-K : Cite as 23 I&N Dec. 677 (BIA 2004) page 680 “Under applicable asylum regulations, asylum officers (acting on behalf of the DHS) are authorized to approve, deny, refer, or dismiss the asylum application. See 8 C.F.R. §§ 1208.14(b), (c) (2004); see also 8 C.F.R. § 1208.19 (2004) (describing the various types of “decisions” of an asylum officer, including one to “refer an asylum application”). We find that any one of these constitutes an “action” on the part of the DHS.”
It seems to me that this can be used as a legal capacity for some asylum seekers in the backlog.
My question is
1, If I file i485 and still waiting for an asylum interview and my EB2 AOS got denied will it impact my asylum case or i485 denial will send me to the removal proceeding just by itself?
2, Do you see it challengeable to challenge USCIS in district courts or higher in the circuit court of appeals?
3, Do you see maybe AILA or any other asylum supporting organization be interested to help in such a case that can reduce the backlog somehow?
4, Do you. accept such a case to challenge USCIS or do you know any other attorney that has such experience?
I do not know of anyone successfully doing what you want to do, but in theory, it should be possible. Maybe let us know what happens. As for the questions: 1 – Denying AOS should not effect the asylum case, and it would not normally cause you to be sent to court, especially if you have an asylum case pending. While I think it is very unlikely, I suppose it is not impossible that they would send you to court if the I-485 were denied. 2 – Maybe. I think it would depend on the basis for their denial, and you would need to evaluate that if it happens. 3 – I do not think they would get involved with a case at the initial level (the I-485), but they do sometimes get involved in federal litigation. However, if it is an issue of interest to them, maybe they would get involved at an earlier stage, if for no other reason than to set up the federal case. In any event, it does not hurt to ask them. 4 – I do not know anyone who has done such a case, and I think I would not take such a case, as I do very little with employment based immigration. Take care, Jason
Hey Alex,
Have you filed AOS, were you able to get it? please tell us the story so that we all can take benefits, if possible.
Alex,
would you mind sharing what happened to your AOS application?
Dear Jason and asylum seekers,
I applied for EAD first time in late October as ASAP member. No receipt and no rejection as well. I sent an inquiry e-mail to lockbox address a month ago.
And Today I got the following:
“The Lockbox has recently experienced a significant increase in filings. This, in addition to the restrictions put in place because of the COVID-19 pandemic is causing significant delays for processing receipt notices. USCIS continues to work hard to minimize delays. Once your submission has been completely processed, you will receive a notice in the mail. If you do not receive a notice in 30 business days, please contact Lockbox Support for additional details.”
Anyone in same situation like me? Please share your thoughts. As an ASAP member, I am supposed to receive my initial EAD within 30 days after filing I-765 form. But it has been almost 80 days.
Thanks
My application arrived at 30 October, no recipient no fee withdrawal yet
Thanks for your comment. Let me know if you hear anything from USCIS. So will I.
Eighty days seems long, even under the current circumstances. I will post an announcement that I saw from USCIS about this later this morning, so you may want to check that (though it may be the same info they already sent you). I am not sure what else can be done. I guess you can try calling USCIS to see if you can reach a person who can help you: 800-375-5283. My concern is that USCIS did not receive it at all, and that you should re-send it. I do not know when to make that decision, but 11+ weeks is a very long time to wait for a receipt. If you do send a new application, make sure to include a cover letter explaining about the first application, that you got no receipt after a long wait, and so you are applying again. I might wait until after the holidays to do that, as mail is slow this time of year for everything, but that is up to you. Good luck, Jason
Thank you Jason,
Hmm.. yeah it’s been long. But pending day is not 80. I was so stressful yesterday and put wrong number. It has been 55 days since my submission.
I will follow your advise and wait until January 10th.
Thank you again for your kindness as always.
Merry Christmas Jason.
Jason, I’m confused about refugee travel documents and advance paroles.
Asylees aren’t supposed to use their home country passports, so they should get refugee travel documents before leaving the USA. But people with pending I-485s are supposed to get advance parole before leaving the USA, or their I-485 is abandoned. Does that mean that an asylee who has a pending I-485 needs both an advance parole and a Refugee Travel Document before traveling outside the USA?
We have never done that – we just get the RTD for people and that is fine. I think if you have no other status and are applying for the GC on I-485, you need AP. But if you have status (such as asylum, H1b, etc.), you do not need AP to return. For an asylee, though, you should have an RTD. Take care, Jason
Dear Jason, please kindly advise. I filed for work authorization 2 months ago and my check for 495 was not cashed still and I never received receipt from them. It really concerns me now since it’s been two months already 😢
Is it just me or someone else experiencing such delays with work authorizations?
Thank you so much.
That seems too long, even though we are seeing longer delays than normal. Maybe try calling USCIS at 800-375-5283. See if you can reach a human being and ask about your case. If that does not work, maybe wait another week or so, but I guess you can cancel the check with your bank and re-file. If you do that, you should explain in the cover letter what happened. Also, send the application by certified mail, so you know if they received it (maybe you already did that – if so, it seems like too long to me). I will post something about receipt delays tomorrow, so maybe check back if you are interested. Take care, Jason
I”m in a similar boat. Filed an application for a new EAD (the initial one given with a grant of asylum is about to expire in late March). Documents arrived to the Texas processing center on November 23rd. Still no confirmation, nor the check was cashed (btw, I found info on the official site that is this case one doesn’t need to pay again — as long as the green card application is still pending — but I still sent a $410 check).
Thank you so much Sir! You are the best, I will look forward to your post tomorrow.
Hi Jason
We had submitted our 4 separate I-485 with one combine fee waiver from I-912 , two months back ,
Now we receive reply from USCIS that 3 of them are approve for fee waiver in seperate letters.
and 4th I-485 form they return/ rejected , due to signed by myself and my daughter is 14 , she is supposed to sign the form.
Question: Can we submitt a fresh fee waiver form for my daughter or once USCIS rejected fee waiver , we can’t re-apply.
Please advise.
Danny
When you re-send it, you should send a new fee waiver. You might also include evidence that the other fee waivers were approved. You can explain what happened in a cover letter, and hopefully she will also get the fee waiver. Take care, Jason
Hello Jason,
Thank you for yet another very useful article.
I have applied for RTD on November 3rd and have yet to receive any communication from USCIS, no Notice of action, no fingerprint appointment. Do you see it’s normal now to wait for more than 6 weeks to receive any kind of correspondence from USCIS?
thanks!
Unfortunately, I think it is pretty normal. I will post something about that tomorrow (I think), so stay tuned. Take care, Jason
Hi Jason . I am Asylee and I’m filling out i485 . My asylum was granted for me and my son and he is older now over 21 . When we arrived he was minor . I’m doing my separate application for AOS and it is asking about my children … I will put him in amount of children , but then it asks is this child applying with you ? I mean he is applying separate because he is older . I don’t know if I should put yes or no to this question . Thank you
I forget, but I think if you are applying at the same time, you can put yes. Maybe circle the question and say “See cover letter.” In the cover letter you can explain the situation. Take care, Jason
Hello Jason , quick question I was granted asylum on 01/04/2020 and I plan of filling out my i485 with date signed on 01/05/2021 and mail . One day after the year. Is this safe to do ? I’ve heard some people get rejected if it’s too early
SHIA, I am not Jason. He will respond.
Aside from the fact that every application is NOT the same- for instance, someone may file an application 1 year after being granted asylum, but this person may have traveled outside of the U.S. and therefore the application may be denied because the applicant never accounted for the days s/he was outside of the U.S.- you said that you’d have met the 1-year residence requirement on 01/05/2021. If you have not traveled, or will not travel, outside of the U.S., what makes you think that your application would be denied if you file your I-485 on 01/05/2021? Isn’t this the requirement? I have never heard of USCIS denying an asylee’s I-485 who clearly MEET the 1-year residence requirement.
If you file it after one full year (and you have one full year of physical presence – meaning you did not leave the United States between January 4 2020 and January 4, 2021), you should be fine. Take care, Jason
Mr.Jason. Many thanks for your support
I am an asylee in the US and I will apply for GC in two months. However, I am worried about my brother, he got a job offer to Canada and is planning on applying for a work visa. Will my status in the US affect his application? I have heard that Canada and the US exchange all immigration information. Please let me know. Thank you!!!
The two countries do exchange information, but I do not know if it would include information about a sibling. Also, asylum is confidential, and so I do not think that would be included either. If he is worried, maybe he can talk to a lawyer in Canada to see about the criteria to get a visa, and ask whether your case might have any effect. Take care, Jason
Thank you always for your updates, guidance and information.
I have a pending asylum case in USCIS and I am moving this week.
I have printed out the AR-11 and ready to be mailed to USCIS.
Do I need to send a separate letter to local asylum office as well or will the AR11 update effect universally in the USCIS system?
You can file the AR-11 online, and that is generally better. You can also send a copy to the asylum office if you want. I recommend doing that by scanning and emailing it to them. You can find their email address if you follow the link at right called Asylum Office Locator. Take care, Jason
Good Evening Jason,
Thank you for your continuous service to all of us. I have learned a lot from your blogs and felt hopeful anytime I felt hopless. I have a question, my asylum was approved in September and I had already applied for EAD renewal on C8 catagory. I am wondering why the EAD c8 renewal application is still processing? Online status for that states that ” biometrics requested”. I am very confused. I thought it automatically closes as now I am an asylee and have already received EAD with A5 catagory.
Thank you
I think eventually USCIS will realize that you are not eligible for the EAD and that they will deny it (since you already have an a-5 EAD). I suppose you can try to cancel it yourself by sending a letter to USCIS at the address on the receipt. Include a copies of the receipt, your asylum approval, and the a-5 EAD. You can also ask for a refund of the fee, but it is very unlikely to get you your money back. Take care, Jason
Jason, you are right. The exact same thing happened to me.
Dear Jason, Thankyou for all your help and support, I have a quick question. My asylum case got approved last month but because my previous EAD was going to expire so while waiting for the decision after interview,I already had applied for the renewal and paid the fee . meanwhile I got the approval letter and received my A05 category EAD. Is there anyway USCIS will reimburse me the fee I paid for C08 pending asylum category EAD since it’s not required anymore? If yea, whom should I ask or contact about it? . Thanks
I highly doubt they will reimburse you. I guess you can try, though. Maybe the best way would be to call 800-375-5283 and try to talk to a person. You can also send a letter to USCIS (to whatever office sent you the c-8 EAD receipt) and ask them to reimburse you. Include an explanation and a copy of the a-5 EAD. Again, I think this is very unlikely to work, but I think you have nothing to lose by asking, except for some time. Take care, Jason
They won’t reimburse you. They’ll just send a letter to say the application was denied (if they sent you an a-5 EAD). This happened to me.
Jenny,
I hope the refund works for you. I am expecting my asylum decision will come soon as I requested expedite for the decision, they approved my request and stated that it is at the final stage of processing. It will most likely positive result as my case is highly valid and has strong supportive evidence.
My EAD will expire around June. I could apply for renewal but I want to wait for the decision so I can get the EAD as an asylee. My question is you said you applied for renewal in September, you received your approval last month, and EAD with A05 category. How long did it take to get EAD with A05 after you received your asylum decision? and Can you say which USCIS office you worked in?
Jason, what do you recommend for me?
I know I have time for renewal till June but I feel panic as the system is so slow nowadays. I do not want to wait till the last minute. Jason may remember, I was asking about my wife’s EAD renewal that we have not received the receipt for more than 6 weeks from the previous blog entry.
I think you can wait a couple months to see if you get a decision. If you file 3 months before the old card expires, you will get the automatic extension, and so you will have a total of 9 months for USCIS to process the new EAD. Alternatively, you could file for an EAD and request a fee waiver (form I-912, available at http://www.uscis.gov). There is a new announcement about receipt delays from USCIS, and I will try to post that here tomorrow. Take care, Jason
Firstresponser,
First, I hope you will get the approval so quickly. Then, may I ask you how did you request an expedite for your decision?
Thanks,
Good luck.
Maybe First Responder will respond, but when we request an expedited decision, we just email the asylum office and explain why the decision should be expedited (and include evidence, if any). You can find their email if you follow the link at right called Asylum Office Locator. Take care, Jason
Dear Jason,
Thanks for your response. Do I understand that this email ” the public email of the office ” differs from the writ mandamus?
And what kind of evidence do I enclose?
Can I send this email even if I have an attorney?
Thanks in advance
The mandamus is a formal request to a federal judge to force the asylum office to do its job. Sending an email is only a request (but typically, a federal judge would want to see that you tried other paths before filing a lawsuit). As for evidence, it is the same as for a request to expedite an interview, which I wrote about on March 30, 2017. You can send it yourself, but it is far better to coordinate with your lawyer, or at least inform your lawyer about what you are doing. Take care, Jason
I send it via mail a cover letter and supportive documents.
Hi there , is the i485 part about your immigrant category underlying petition and priority date only apply to other people not Asylees ?
I do not think those questions would apply to an asylum seeker, but you may want to check with a lawyer to be certain, since I do not know the specifics of your situation. Take care, Jason
Hello sir Jasón. Quick question I’m preparing my i485 alone I am low income person. So , on the part that says preparer should I fill in it with my name because I prepared this myself or leave with n/a . I don’t know how to finish this up. Thank u sir
That is only if someone else besides the applicant prepared the form. You can just write N/A. Also, you may want to look at form I-912, which allows you to waive the I-485 filing fee if you have a low income. Take care, Jason
Dear Jason I beg of you please read this new USCIS manual … and give me your thoughts
https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20201215-RefugeeAsyleeAOSInterviewGuidelines.pdf
MORE TORTURE MORE DELAY FOR US , when is it over ???
My 2 cents is we shall wait and see.
There are couple of things –
1) As Jason pointed out before there are many applicants facing issues during naturalization due to misunderstanding of some minor questions in the form or when responding to RFE. In person interview might help in resolving some of thee issues.
2) According to USCIS currently about 5% of the asylee/refugee AOS applicants are interviewed. Because even with the change it does not mandate interviews for all applicants, I would not expect a drastic change in # of applicants being interviewed. there will be an increase, but most likely less than 50%.
3) The problem with the asylee AOS has little to do with the interviews. Naturalization, family based and employment based petitions all required an interview and yet most of them are processed faster than those cases pending in TSC. I guess they did not allocate enough resources processing these applications.
I am not sure what you are asking about. There is a new policy on interviewing asylees for GCs, but given that President Trump is (hopefully) on his way out, I do not expect it to have much impact. We will have to see, of course, but supposedly, Joe Biden will reverse Mr. Trump’s policies. Take care, Jason