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.

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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 who is not in immigration court proceedings can file a claim with the Asylum Office. Whether you file your claim while in lawful status or after your status ends is a strategic question.

All asylum applicants undergo the same type of interview at the Asylum Office. The procedure for asylum approvals is the same for everyone -- that is, one can be approved regardless of whether one is in lawful status at the time of applying.

It is when the officer does not grant asylum that the procedure goes in different directions for applicants who are in lawful status and for those who are not.

Asylum applicants who are not in lawful status are generally asked to return to the asylum office a few weeks later to pick up their decision. If they are not granted asylum, these applicants are given a Notice to Appear in immigration court (an NTA). 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 your lawful status ends while the officer is making his or her decision, you will most likely simply become a person with no status. On rare occasions the officer will issue and mail a Notice to Appear in immigration court, where you will have a chance to renew your asylum claim before the judge. This could happen when the officer notices that your lawful status has ended.

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. 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.

Deciding when to apply for asylum if you are in lawful status can be stressful. It can be helpful to consult with an attorney who specializes in immigration law in order to discuss and strategize your timing.

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