Maintaining F-1 or Other Nonimmigrant Status During Asylum Process

Asylum applicants often ask us about maintaining their current non-immigrant status or losing status while their asylum cases are pending. Quite often, the asylum applicant is an F-1 student, who has been in the US for some time, and while in the US may have incurred basis for asylum. Or the student, may have experienced some type harm during one of the trips to her home country now creating basis for her well-founded fear. In such cases, the applicants are often uncertain about what happens to their student status after applying for asylum. So, we decided to post this article in a format of several actual questions from our clients and detailed answer provided by attorney Ismail T. Shahtakhtinski.

Question: I came to the US with an F1 visa. Now that I filed the I 589 for asylum, what kind of visa I am on? Is the F1 still a valid visa or is that canceled at this point? If I am still in F1 status while my asylum case is pending, what will happen if I stop going to school or otherwise lose my F-1 status?

Answer: If you maintain your F-1 status (i.e. continue attending required classes, do not work without authorization, pay tuition, etc.), you will remain in F-1 status during the processing of your asylum application. If you drop school, then you will lose your F-1 status, but will maintain “lawful presence” due to your pending asylum case. Note, that the words “visa”, “status” and “lawful presence” have different meanings. Visa is only required to enter the country. After the person enters the country, she gets status and her visa becomes irrelevant. The length of status is determined by the type of visa used to enter. The CBP officer will normally place a stamp in the passport of the admitted alien, showing the classification, i.e. type of status and the end of that status. So, for example, a person admitted with tourist visa (B1/B2) will usually get 6 months’ status; while a person with F-1 student visa will be in status until the end of school program. If the F-1 visa holder drops from school, his status will be terminated. But, if he timely filed for asylum or some other immigration benefit and that application is still pending, then he will still be allowed to remain in the US, i.e. will have “lawful presence”, despite not having a status. So, when he drops school, he will lose his F-1 status, but will remain in the period of lawful presence until his asylum case is decided. Losing status during the asylum case will affect the procedural aspect of the asylum case as described below. It will also determine which options are available to the applicant if her asylum claim is denied.

If the applicant maintains his F-1 status and his asylum gets denied by the USCIS Asylum Officer, then the applicant will remain in F-1 status and will have the following choices:

1. Continue remaining in F-1 by continuing eligible study program(s). In that case, the applicant would simply comply with the terms of F-1 status and renew I-20 as needed. For example, the applicant can graduate from the current F-1 program and be eligible for OPT, or take up another degree program, renew I-20, or transfer to another school to continue studies; or
2. Change to another status, for example, H-1B, L-1, or green-card based on employment, DV lottery, or family petition. Note that you will not be able to change your status to another non-immigrant status, which requires a non-immigrant intent, because the fact that you applied for asylum shows your immigrant intent.
3. Pursue your asylum claim through immigration court by losing status and re-filing your asylum application, which will this time be forwarded directly to immigration court without an interview. So, there is a very common misperception that, if you maintain your status during the affirmative asylum process, then you will lose the chance of presenting your case to an immigration court. This is untrue. In fact, your second chance to present your case and ask for asylum, will be preserved. You will be able to exercise that chance to pursue your asylum claim through the immigration court, if, at any point in time, you fall out of status. If at that time, your case is not yet in immigration court, then you must re-file your asylum application with the USCIS, clearly noting that USCIS had already denied it previously, and asking them to refer your case to the immigration court.

Additionally, if the applicant maintains a valid status, before denying the asylum claim, the USCIS Asylum Office will serve a Notice of Intent to Deny (NOID), which will detail the reasons why the Asylum Officer does not believe you are entitled to asylum. This gives you another opportunity to prove your case by answering the questions raised in the NOID. Although rarely, the asylum office does sometimes change their mind about the case based on the response to their NOID.D.

But if you do not have a valid status at the time when your asylum application is denied by the USCIS Asylum Office, then your case will be directly referred to immigration court for removal proceedings and you will not be able to apply for another status change, except for green-card based on marriage with a United States citizen, in which case you would have to get the court to administratively close your case allowing you to apply for adjustment of status.

While your case is in immigration court, you will have the following options:

1. Withdraw your asylum claim and ask for voluntary departure. This choice may be helpful if, for example, you would like to apply for another visa or green-card through another basis at a US consulate abroad. But note these three important cautions:
   1. You will not be able to get a visa, which requires a non-immigrant intent, because the fact that you applied for asylum shows your immigrant intent.
   2. Additionally, leaving the US after unlawful presence (e.g. if you worked without authorization during your asylum case) may trigger an automatic 3-year or 10-year ban against you.
   3. Finally, if you withdraw your asylum claim and travel back to your home country, it may raise questions as to the frivolousness (truthfulness) of your asylum claim.
2. Prepare and pursue your asylum claim in immigration court. The immigration court will once more consider your asylum case. The court will first schedule your master hearing and then individual hearing, where you will have a chance to present your case and answer questions.

If the immigration judge also denies your asylum claim, then the judge will enter an order of deportation. You may still have an option of asking for voluntary departure after the individual hearing to avoid the order of deportation, but you have to take proper actions for it. The decision of the immigration judge can be appealed to the Board of Immigration Appeals (BIA). The decision of BIA may be appealed to federal courts, up to the Supreme Court, if certiorari is granted. All of this process can take between 5-10 years or more. It will also cost you a lot more to go through the immigration court. Therefore, it is always recommended to make every effort and to dedicate all your resources to getting your asylum approved and granted at the first stage of the process i.e. through affirmative asylum application to the USCIS Asylum Office. See: /immigration-law/asylum-through-immigration-court-vs-asylum-office/

When you decided to apply for asylum or if you are placed in deportation proceedings, it important to hire a highly qualified and experienced immigration lawyer as early as possible, in order to avoid potential problems and to plan the best strategy for you and your family. Over many years of our practice, attorney Ismail Shahtakhtinski and I.S. Law Firm have provided excellent support to many immigrants and their families in their asylum cases and removal proceedings. We represent clients in their asylum cases both affirmative in USCIS Asylum Offices as well as defensively in Immigration Courts throughout the entire United States. To learn more about our services or to schedule a consultation, please contact us at (703) 527-1779 or via e-mail: [email protected].