Can I Apply for Asylum If a Family Immigration Petition Has Been Filed for Me?

A family petition is not a bar to applying for asylum, but make sure the asylum claim truly has merit.

By , Attorney · American University Washington College of Law

In terms of basic legal procedures, foreign nationals who live in the U.S. and fear persecution in their home country are allowed to file a claim for asylum even if they have other immigration petitions pending with the U.S. government. There are advantages and disadvantages to filing an asylum claim while awaiting an immigrant visa or green card, however, particularly if you are living in the U.S. without permission, as an undocumented person. This article will help you to weigh these factors carefully before deciding what to do.

Do Not Try Using Asylum as a Way to Extend Your Lawful U.S. Stay

We should start with a reminder that asylum cannot be viewed as a convenient way to extend your lawful stay in the United States. You should file an asylum application only if you have genuinely suffered or fear persecution in your country on account of at least one of five grounds: your race, religion, nationality, membership in a particular social group, or political opinion.

In fact, someone who files a claim that is found to be "frivolous," that is, deliberately fabricated, becomes permanently eligible for a U.S. green card on any basis, per Section 208(d)(6) of the Immigration and Nationality Act.

Applying for Asylum Risks Being Placed in Deportation Proceedings

If the U.S. Asylum Office does not grant your request for asylum, it will, unless you have some other lawful immigration status in the United States, refer you to an Immigration Judge for an individual hearing. Once in immigration court, you are at risk for being removed (deported) from the United States. This would not happen immediately, since the hearing and appeals process typically take months or years, but you could eventually be sent home.

Unlawful U.S. Entrants Might Do Better to Apply for Asylum Than for a Family-Based Green Card

If you have, in fact, been persecuted or fear persecution, then of course you might have good reasons to apply for asylum. In fact, it could ultimately be better than applying through your a family member, because you can win asylum even if you entered the United States without inspection.

Family-visa applicants who entered the U.S. unlawfully and have no existing immigration status, other than those classified as "immediate relatives" (the spouse, parents, or minor unmarried children of a U.S. citizen), can NOT apply for a green card without leaving the United States to attend an interview at an overseas consulate. In other words, they are most likely not eligible to "adjust status," or apply for a green card within the United States.

And it could be a long wait, if no visa number (based on the petition filed by your family member) is immediately available to you; in other words, if your Priority Date is not current. Long waits are common in some categories of the family visa system.

Depending on how much time you have been in the United States without legal status, however, leaving the U.S. for your consular interview might well bar you from returning, for either three or ten years. With a grant of asylum, however, you could simply apply from a green card in the United States one year after approval.

If you decide to file an asylum claim, act quickly. You will need to submit your I-589 application within one year of your most recent entry into the United States unless there are exceptional or extraordinary circumstances in your case. (See Can I Still Apply for Asylum After the One-Year Filing Deadline? for details.)

Getting Legal Help

Strategic decisions like yours are often easier when you consult with an experienced immigration attorney. The attorney can sit with you and evaluate your potential claim for asylum and explain all the possibilities in detail, and prepare any paperwork and legal arguments.

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