What's Better: Apply for Asylum Before or After End of Permitted Stay on Visa (I-94)?

Should you apply for asylum in the United States now or wait until you are no longer in lawful immigration status?

By , J.D.

As someone who is legally in the United States on a valid nonimmigrant visa (such as in student or temporary worker status), how to handle fear of returning to your home country can be tricky. Technically, U.S. immigration law says there is a one-year deadline between entering the U.S. and applying for asylum. But U.S. Citizenship and Immigration Services (USCIS) often follows a policy of making an exception for people who were in lawful immigration status at first, so long as they apply for asylum within a reasonable time after falling out of status.

Should you apply for asylum now or wait until you are no longer in lawful immigration status? (For purposes of eligibility to apply for asylum, it doesn't matter whether you have a valid visa or are in the U.S. unlawfully.) This is ultimately a strategic question, which depends largely on:

  • when your immigration status in the U.S. expires, and
  • how soon your request for asylum is likely to be heard and decided on.

When Does Your Lawful Immigration Status in the U.S. Run Out?

The date by which you must depart the United States is likely on a document called an I-94, which you can access online. If you are here on an F-1 student visa, however, you might not see a date. Instead, you might be allowed to stay for the duration of your status (D/S); that is, until your program of academic studies is over.

You might even be able to remain in the U.S. legally for a number of years, by applying to extend your work visa status or applying for admission to another U.S. academic or vocational program for additional study or training.

Applying for asylum immediately, however, might be in your best interest, so as to more quickly obtain work authorization.

How Soon Will Your Asylum Case Be Heard and Decided Upon?

More people have applied for asylum in recent years than the system can handle. Many people can expect to wait years for a decision. USCIS has, however (starting in 2018), been implementing a "last in, first out" system of handling applications, meaning the latest people to apply are ordinarily heard before the rest of the backlog.

In any case, you might well be out of lawful immigration status before a final decision is made on your asylum application. Nevertheless, you will be allowed to stay in the U.S. while awaiting that decision.

Applicants with any lawful form of immigration status, such as a visitor visa (B-1 or B-2), student visa, or work visa, typically receive the asylum decision by mail a few weeks after the asylum interview. If the officer does not grant asylum, you will receive a Notice of Intent to Deny (NOID) explaining why. You will have 16 days to respond to the NOID.

Assuming you reply, the asylum officer will read your response and think about whether to change their mind. If the asylum officer does have a change of mind, 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 status you were in before. If you are not in lawful status, you will normally be issued what's called a Notice to Appear (NTA) in Immigration Court. During the court proceedings, you can renew the asylum case at a hearing before an immigration judge.

Getting Legal Help

It can be helpful to consult with an attorney who specializes in immigration law in order to discuss and strategize your timing. The attorney will know the latest USCIS policies and can help you prepare a convincing case for asylum.

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