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Asylum Pending Status Explained

Author: Asylum attorney Alena Shautsova

An applicant for asylum often lists his/her status as "asylum pending", and often, people who have applied for asylum in the United States have some misconceptions as to what this “asylum pending” status entails.

One of the most common misconception is that a person who came to the United States in some legal status (let’s say J1, F1 or B) can create a bridge in his/her legal status with an asylum application necessary for a successful employment based application. I have to disappoint all those who believe that pending asylum application provides any “legal” status in the United States. It does not. All it provides is an “authorized stay”, a permission to stay and at some point engage in employment in the United States. “Asylum pending” in fact is not a legal non-immigrant status necessary for effective change or extension of status, or adjustment of status when there is a gap between the priority date, first legal status and I 485 filing date. So, let’s say Masha came on a F1 visa on January 1, 2020. Masha’s F1 status expired on June 1, 2020. On May 25, 2020 Masha filed for asylum. On January 1, 2022, while Masha’s asylum application was still pending, Masha found an employer ready to file for green card. Masha was under impression that filing for asylum “saved” her “legal status” in the United States. In fact, it did not. For Masha to receive an employment based green card, she would have to leave the United States and go to a consulate… in a country she was asking asylum from! (most likely).

The only “positive” in this scenario is that since Masha’s F1 status expired on June 1, 2020, she did not accumulate unlawful presence from that date until her application is denied (if not granted), and she would not be subject 3/10 year bars of unlawful presence if she has to travel outside the United States.

Also, while an applicant for asylum is waiting for his/her interview, it is possible to apply for an advance parole: a permission to travel outside the country and return. Please note that it is still risky to do so, as advance parole does not guarantee an admission back to the United States. Another benefit of pending asylum, is, of course, an employment authorization that an applicant can file for once 150 days elapse form the time he/she filed for asylum. The application, however, will not be granted until 180 days pass from the time the asylum application was accepted by USCIS. Those who are in removal proceedings and have pending asylum applications cannot file for an advance parole, but can file for a work authorization.

19 December 2016
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