Can I Apply for EB2 While My Asylum Case is Pending?

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Picture of Shawn Sedaghat, Esq.

Shawn Sedaghat, Esq.

Are you wondering if you can chase an EB2 green card while waiting for your asylum decision? The world of immigration processes is complex, but there’s a path forward even when cases overlap.

Before we go forward, please understand that immigration law is extremely complex and consulting an experienced immigration attorney would be absolutely necessary when you are taking steps such as applying for an EB-2 or later for your consular processing or trying to adjust status. This is especially true if you are an asylee or waiting for your asylum interview.

They will guide you as you try to collect supporting documents and other specific requirements to ensure that you get that green card application approved.

This article will barely touch on the maze of regulations and only offer some insights involved in having a pending asylum case and also applying for an employment-based green card.

Key Takeaways

  • You can apply for an EB2 green card even if your asylum case is still pending.

  • Make sure you qualify for the EB2 category by showing exceptional ability or advanced degrees, and that your job benefits the U.S., as well as other consideration related to such a category.

  • Applying for EB2 won’t change your current asylum status, but if approved, it offers another way to obtain your permanent residency.

  • If USCIS denies your green card application, you may have options to appeal the decision.

  • After being granted asylum, you become eligible for a green card one year after your approval, although at this writing, you do not necessarily wait one year to file for it.

Understanding Asylum Status

When contemplating the submission of an asylum application or if you’ve already embarked on this journey, individuals seeking asylum in the United States are navigating a labyrinth of legal complexities. Their pending asylum status hangs in balance as they await decisions with the potential to dramatically shift their life paths.

Grasping these delicate intricacies is crucial for those exploring alternative avenues toward stability and security, such as pursuing an employment-based green card under categories like EB2.

Consulting with an experienced immigration attorney is invaluable for preparing and filing your asylum application, or for aiding in the pursuit of your pending asylum case under the scrutiny of United States Citizenship and Immigration Services (USCIS). Their guidance is pivotal in meeting the specific requirements necessary to reduce the risk of denial and achieving the sought-after lawful status.

Who is Eligible For Asylum in the United States?

Eligibility for asylum in the United States is determined by specific criteria set forth by immigration law. Individuals who can demonstrate that they have suffered persecution or have a well-founded fear of future persecution in their home country due to their race, religion, nationality, membership in a particular social group, or political opinion may qualify for asylum status. This protection extends to those who are already in the U.S. or are at a U.S. border or entry point. Asylum seekers must apply within one year of their arrival unless there are exceptional circumstances that warrant a delay. The process involves a detailed application process, including interviews and potential court hearings with the immigration court. It’s imperative for applicants to provide compelling evidence of persecution and to meet all eligibility criteria as evaluated by Citizenship and Immigration Services or an immigration judge. Given the complexities of asylum proceedings and the importance of accurately presenting one’s case, seeking the guidance of an experienced immigration attorney is often crucial to navigating the application process and increasing the chances of being granted asylum.

The process of seeking asylum in the United States is a nuanced and complex one, designed to offer protection to individuals facing serious threats in their home country. To be considered eligible, an asylum seeker must convincingly show that they have been persecuted or have a credible fear of persecution based on one of five grounds: their race, religion, nationality, membership in a particular social group, or political opinion. This definition encompasses a wide range of potential situations, from threats to life and liberty to more subtle forms of persecution like systematic discrimination or harassment that significantly impact one’s life.

The application for asylum must typically be filed within one year of the asylum seeker’s arrival in the U.S., although exceptions can be made for individuals who can demonstrate either changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances relating to delays in filing. The asylum process involves several steps, starting with the filing of Form I-589, Application for Asylum and for Withholding of Removal, with U.S. Citizenship and Immigration Services (USCIS).

Following the application, the asylum seeker is usually required to attend an interview with an asylum officer at a designated asylum office, where they must provide detailed accounts of their experiences and present any available evidence supporting their claim. This evidence can include, but is not limited to, personal testimony, medical reports documenting physical or psychological harm, country reports highlighting human rights abuses, and letters from witnesses or experts.

In cases where asylum is not granted by an asylum officer and the applicant does not have a lawful immigration status, they may be referred to immigration court for removal proceedings, where they will have another opportunity to present their case, this time before an immigration judge. Throughout these proceedings, the importance of legal representation cannot be overstated. An experienced immigration attorney can provide invaluable assistance in navigating the complex process, preparing the application, advising on the collection of evidence, representing the asylum seeker in court, and appealing the case if necessary.

In summary, eligibility for asylum in the U.S. hinges on the applicant’s ability to demonstrate a well-founded fear of persecution on specific grounds. The process is intricate, with strict criteria and deadlines, and the outcome can deeply impact the applicant’s life and well-being. Given the stakes, professional legal advice is not just beneficial; it’s often critical to the success of an asylum application.

What is Pending Asylum Status?

Pending asylum status signifies a plea for protection lodged with the U.S. government due to feared harm in your home country. Your asylum case awaits adjudication. You’ve submitted the necessary documentation and are in a state of anticipation for a response from immigration authorities.

While in this limbo, you’re permitted to reside legally within the United States, yet this holding pattern does not grant you an official “status” in the traditional sense used within immigration law. Your situation may be characterized by status through alternative means, or you might find yourself out of status yet legally present in the U.S. as your asylum case is pending. Determining your exact status is often critical to your eligibility for an EB-2 green card within the U.S., highlighting the importance of clarifying your current standing.

In this period of uncertainty, it’s essential to recognize your entitlements and the restrictions you face. For instance, securing work permission through filing Form I-765 with USCIS is a possibility, though achieving an adjustment of status may be out of reach.

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Applying for EB2 While Asylum Case is Pending

As you maneuver through the intricacies of your pending asylum case, you might consider the route of applying for an EB2 green card. Understanding the prerequisites and possible repercussions is crucial for assessing this path towards permanent residence.

Requirements and Limitations

It’s feasible to pursue an EB2 green card even as your asylum case hangs in balance. However, there are essential points to consider:

  • Demonstrating exceptional ability in your field is a cornerstone for the EB2 National Interest Waiver (NIW). This involves presenting evidence of advanced degrees or notable accomplishments.

  • Your professional contributions should significantly benefit the United States, potentially enhancing sectors like healthcare, technology, or education.

  • Endorsements from industry leaders, through letters vouching for your exceptional abilities, play a pivotal role.

  • A comprehensive collection of legal documents—spanning diplomas, accolades, and curricula vitae—underscores your educational and professional journey.

  • Initiating an EB2 application leaves your pending asylum status unaffected. The dual procedures can proceed concurrently.

  • USCIS evaluates your EB2 application and asylum claim independently, with distinct benchmarks for each.

  • In the event of an EB2 denial, the door to appeal remains open, though the specifics vary by case.

Potential Implications

As an asylum seeker, facing the denial of your asylum case and subsequent entry into removal or deportation proceedings complicates the journey toward an EB2 green card. The immigration court holds jurisdiction over removal hearings, potentially leaving USCIS without the authority to adjust your status due to jurisdictional constraints. If you planned to exit the U.S. for consular processing to obtain lawful permanent resident status, you might confront additional hurdles, such as a three-year or ten-year re-entry ban, particularly if you overstayed your welcome before leaving. Navigating these challenges necessitates the expertise of an experienced immigration attorney. Naturally, if the asylum office granted your asylum status, you would not face such issues, and you would not have to have further asylum proceedings in immigration court.

The journey is fraught with complexities, where timing and strategic planning are crucial. Consideration for travel documents like Advance Parole is essential; they permit temporary departure from the U.S. without jeopardizing your asylum status. Proper utilization of these documents might pave the way to overcome the out-of-status dilemma, facilitating an adjustment of status within the U.S. However, improper use carries the risk of nullifying the entire process.

Achieving EB2 approval does not guarantee an immediate transition to permanent residency. USCIS must approve your Form I-485 for adjustment of status, or a U.S. consular office must greenlight your immigrant visa, enabling your return to the U.S. as a green card holder.

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Navigating the complex waters of U.S. immigration law, especially when juggling a pending asylum case with the pursuit of an employment-based green card like EB2, underscores the need for personalized guidance and strategic planning. This journey intertwines various facets of immigration policy, from asylum proceedings to the intricacies of adjustment of status, requiring a thorough understanding and meticulous attention to detail.

The path from seeking asylum to potentially securing an EB2 based on exceptional ability or a national interest waiver is fraught with legal hurdles and procedural nuances. It’s crucial for asylum seekers and asylum applicants to remain informed about their rights, eligibility criteria, and the application process, including the importance of supporting documents and the implications of travel documents like advance parole.

For those in the same boat, facing removal proceedings or contemplating the consular process after an asylum case is pending, the assistance of an immigration attorney becomes indispensable. These experts can provide expert attorney advice, helping to navigate the complex process, assess eligibility, and potentially adjust status to that of a lawful permanent resident.

Moreover, understanding the significance of maintaining lawful status, the potential denial of applications, and the strategic use of advance parole could mean the difference between adjustment of status and facing removal proceedings. Each individual’s journey is unique, with specific requirements that may influence the outcome of both their asylum case and EB2 application.

In the end, the goal for many is to achieve permanent residence in the U.S., whether through granted asylum, an employment-based green card, or other forms of lawful permanent resident status. The road may be long, with waiting periods determined by priority dates and visa bulletins, but with diligence, the right legal guidance, and a solid understanding of the process, the dream of becoming a green card holder and eventually a citizen of the United States is within reach.

Remember, while the application process for asylum and EB2 may intersect, each carries its own set of challenges and eligibility requirements. Whether you’re an asylum seeker looking to register permanent residence or an individual with exceptional abilities aiming for an employment-based green card, taking informed steps forward with the support of a skilled immigration lawyer is key to navigating this complex process successfully.

FAQs on Asylum and EB2 Green Card Process

1. Can I still apply for an EB2 green card if my asylum case is pending?

Yes, you can apply for an EB2 green card even with a pending asylum case. It’s crucial to meet the eligibility criteria for the EB2 category, which typically includes demonstrating exceptional ability or holding advanced degrees. Applying for EB2 does not affect your asylum status, but consulting with an experienced immigration attorney is highly recommended to navigate the complex process smoothly.

2. What happens to my pending asylum status if I apply for an EB2 green card?

Applying for an EB2 green card does not directly impact your pending asylum status. The USCIS reviews both applications separately based on their individual eligibility criteria and specific requirements. However, achieving a lawful permanent resident status through EB2 can provide a pathway to permanent residence, supplementing your asylum proceedings.

3. How can I prove my exceptional ability for the EB2 National Interest Waiver?

To prove exceptional ability for the EB2 National Interest Waiver (NIW), you need to provide evidence of advanced degrees, significant achievements, and letters from industry experts vouching for your skills and contributions to your field. These documents should demonstrate how your work benefits the United States in areas like healthcare, technology, or education, aligning with the national interest.

4. Can I travel outside the US with pending asylum and EB2 applications?

Traveling outside the U.S. with pending asylum and EB2 applications requires caution. Obtaining advance parole is essential to avoid jeopardizing your applications. However, misuse of travel documents can impact your asylum status and EB2 process. Consultation with an immigration lawyer is crucial to understand the risks and proper use of advance parole.

5. What should I do if my EB2 application is denied while my asylum case is pending?

If your EB2 application is denied, you might have options to appeal the decision. It’s important to review the denial reasons, as every case is different, and consult with an immigration attorney for guidance. This does not automatically affect your pending asylum case, but an expert attorney can offer personalized guidance on the next steps.

6. How long does the EB2 application process take, and how does it affect my asylum case?

The timeline for the EB2 application process varies, influenced by factors like your priority date and USCIS processing times. Applying for an EB2 does not halt or directly influence your pending asylum case. Both processes proceed independently, and staying informed about visa bulletins and maintaining lawful status through employment authorization documents or other means is crucial. Consulting with an immigration lawyer can provide clarity on how these parallel processes might unfold based on your specific requirements and circumstances.

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