Should I apply for asylum before my visa expires (while I have lawful status)?

You'll need to make a strategic decision about when to apply.

Question

I am from Bangladesh and have a valid student visa. But my status will expire soon, when I finish my program. I am afraid to return home and want to apply for asylum. Should I apply now or wait until I am no longer in lawful status?

Answer

Anyone physically in the United States can apply for asylum, regardless of whether they have a valid visa or remain in the U.S. unlawfully.

Whether you file your claim while in lawful status or after your student status ends is a strategic question. It can be helpful to consult with an attorney who specializes in immigration law in order to discuss and strategize your timing. Keep in mind that there is a one-year asylum filing deadline (with a few exceptions) and you should attempt to file an application within one year of arriving in the U.S. whenever possible.

Currently, asylum applications are extremely backlogged, and you can expect to wait years for a decision. Given your situation, it is likely that you will be out of status before a final decision is made on your asylum application.

One option to consider is applying to another U.S. academic or vocational program for additional training. Or if you would rather apply for asylum immediately, it might be in your best interest to file your application as soon as possible in order to more quickly obtain work authorization.

Keep in mind that if an asylum application is denied, applicants who are not in lawful status are normally issued a Notice to Appear (NTA) in Immigration Court. During their court proceedings, they can renew their asylum case before a judge. Applicants with any lawful status, such as a tourist visa, student visa, or work visa, typically receive the asylum decision by mail a few weeks after the interview. If the officer does not grant asylum, you will receive a Notice of Intent to Deny (NOID) explaining why the officer is not planning to grant the case. You will have 16 days to respond to the NOID.

Assuming you reply, the officer will read your response and think about whether to change his or her mind. If he or she does, you will receive a grant of asylum in the mail. Otherwise, you will receive a final denial. If you are denied asylum you will remain in whatever lawful status you were in before.

If you receive a final denial and no Notice to Appear, you will not be able to have your asylum claim heard by an immigration judge until you are placed into removal proceedings. In this case you are entitled to apply for asylum again since your application was denied by an asylum officer and not by an immigration judge.

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