If you are in the United States on an F-1 student visa, you have the right to apply for asylum. There are a few important points you should know before applying for asylum.
The One Year Rule For Students Seeking Asylum
Generally, an individual must apply for asylum within one year of entering the United States. However, an exception exists for those who have “maintained lawful status”. This means that you can apply for asylum at any time while you are in lawful F-1 status. For example, if you have been in the United States for three years as an F1 student, applying in your third year is not considered late. However, students are expected to apply within a “reasonable period of time” after the expiration of their status. Courts have generally ruled a “reasonable period” is within six months of the expiration of your status. Therefore, if you are in lawful F-1 status and completed your OPT, then you should apply no later than six months after your OPT period ends. See INA §§ 208(a); 101(a)(42); 8 C.F.R. § 208.4(a); 8 C.F.R. § 208.4(a)(5)(iv); Matter of Y-C-, 23 I & N Dec. 286, 288 (BIA 2002)
Regardless, if you know you will be applying for asylum, it is better to do so earlier rather than later. Applying early ensures that you do not miss any deadlines, ensures your eligibility to obtain work authorization by virtue of your pending asylum application, and ensures that you have secured a place in the long asylum backlog, where it may take many years for an interview to be scheduled.
Employment Authorization While In Student Status
An individual who has filed for asylum with the asylum office is eligible to apply for work authorization 150 days from the date of filing Form I-589 (Application for Asylum). This is true even for people in student status. Normally, students are not eligible for work authorization with exception to limited on campus employment of 20 hours, or through CPT or OPT authorized work. However, individuals with a pending asylum application can apply for an Employment Authorization Document (EAD) 150 days after filing for asylum. This will not conflict with your student status and you will be eligible to work in the United States.
Departing the United States
It is important to note that if you apply for asylum, and you depart the United States, you may face problems re-entering the United States. An F-1 visa is a nonimmigrant visa, and an application for asylum is evidence of your intent to immigrate to the United States. Therefore, even if your visa stamp has not expired in your passport, you should not depart the United States while your asylum application is pending. Doing so may prevent you from ever returning to the United States, and even if you do, a return back to your home country can severely undermine your asylum claim.
Renewing or Extending Your F-1 Status
If you entered the United States on an F1 visa, you were admitted as “D/S”. D/S means duration of stay, and you are authorized to remain in the United States as long as you remain a bona fide student. To be considered a student, you must have a valid I-20. Even if you applied for asylum, you will remain in valid F-1 status until your program ends or you otherwise cease being a student. Transferring your I-20 and attending higher educational programs, such as a masters or doctoral program, are permitted even with a pending asylum application. As long as you are in the United States, an individual can be simultaneously in F-1 status and have a pending asylum application at the same time.
Future OPT or CPT
Because you remain in valid student status, you remain eligible for all the benefits that come with student status. This includes Optional Practical Training (OPT) and Curricular Practical Training (CPT) eligibility. As a practical note, however, because you will obtain work authorization through asylum, it may be unnecessary to seek OPT or CPT employment through your school.
H-1B Eligibility
Assuming that you have maintained your student status and find an employer who is willing to sponsor you for an H1B, you remain eligible for H1B registration (lottery) and later, a change of status from F-1 to H-1B. This is true even if you have a pending asylum application. Therefore, if you have filed for asylum, but continue to be in lawful F1 status, and later, are selected in the H1B lottery, you are eligible for a change of status.
It is important to note that while this is theoretically possible, in practice, it is often difficult. The reason is because you must maintain your F-1 status, then find an employer willing to sponsor you for an H1B, then, be selected in the H1B lottery, which has a low selection rate. You should have realistic expectations regarding going from a F-1 status to H-1B. It is entirely possible to have a pending asylum application during this entire time, and no conflict exists between any of these visa classes and an application for asylum.
Labor Certification Eligibility
If you have applied for asylum, and remain in lawful status, you are eligible for adjustment of status based on an approved labor certification and I-140. For example, if you are in valid F-1 or H-1B status and have an approved I-140, you can seek adjustment of status.
It is important to note that if you are not in status, and have only a pending asylum application, you may not be eligible for adjustment of status. Although Matter of L-K- indicates that a pending asylum application can be considered a “technical reason” within the meaning of section 245(c)(2) of the Act and the applicable regulations at 8 C.F.R. § 1245.1(d)(2)(ii), allowing for adjustment of status, USCIS decisions on this issue are mixed.
Regardless, if you have no unlawful presence, you remain eligible to seek consular processing of your approved I-140 petition if you are otherwise not eligible for adjustment of status.
Asylum Interview While in Status
If you remain in status and are called for a USCIS interview, you will be asked about the details of your claim. At the interview, you will be asked to explain why you will be harmed if you are forced to return to your home country. An officer will consider your testimony along with country reports to determine if your asylum application should be granted.
The officer will also consider the following:
- Credibility: The officer will assess the applicant's credibility by examining their consistency, coherence, and believability. They may ask questions to test the applicant's memory or knowledge of events.
- Persecution: The officer will evaluate whether the applicant has experienced persecution or has a well-founded fear of future persecution. This includes examining the severity of the persecution, the likelihood of its recurrence, and the government's inability or unwillingness to protect the applicant.
- Protected Ground: The officer will determine if the persecution or fear of persecution is based on one of the five protected grounds. This may involve examining the applicant's beliefs, affiliations, or activities.
- Alternative Solutions: The officer may consider whether there are any safe alternatives available to the applicant within their home country, such as relocation to a different region or seeking protection from the government.
- Past Persecution: If the applicant has already experienced persecution, the officer will assess the severity of the persecution and whether it is likely to recur.
- Future Persecution: If the applicant has not yet experienced persecution, the officer will evaluate the likelihood of future persecution based on the applicant's circumstances and the conditions in their home country.
Asylum Decision While in Status
If you remain in lawful status, the officer has the choice to either grant your asylum application, or issue a Notice of Intent to Deny (NOID). If an officer issues a NOID, they will identify problems with your claim. Potential problems include inconsistent statements, lack of credibility, lack of a well-founded fear of persecution, or other legal problems with your asylum application. If a NOID is issued, you should speak to your immigration attorney about the best way to respond to USCIS’s concerns. Responding to the NOID is your last attempt to convince USCIS to approve your asylum application.
If you respond to the NOID and are still in status, USCIS has the option to grant asylum or deny your asylum claim. If your asylum application is denied, you remain in lawful status and will not be placed in removal proceedings. At a later time, once your status has expired, you can again apply for asylum or request your asylum application be reviewed in immigration court.
It is important to note that you can file for asylum and remain in student status at the same time. Doing so keeps all your options open without harming your current status or eligibility for asylum. Therefore, if you believe you have a strong asylum claim, you should apply for asylum while maintaining your current status.