Can I Apply For Asylum While On a J1 Visa?

Switching From A J-1 Visa to Asylum

A foreigner in the United States on an J1 visa could find him or herself in a situation where they need to change their immigration status from a J1 visa to asylum. This is not necessarily an easy process and requires careful consideration of all available options. It's important for individuals who want make changes to their immigration status to understand the implications associated with such a change. To that end, immigrants should consult and work with an experienced immigration attorney. Immigration lawyers can assist them through the complexities to determine if you can apply for asylum while on a J1 visa.

What is a J1 visa?

A non-immigrant J1 visa visa permits foreigners to participate in study or work exchange programs in the United States. The J1 visa is also sometimes referred to as the Exchange Visitor Visa or the J student visa. A designated sponsor of a work or study program is required to be eligible to apply for a J1 visa. J1 visa holders are legally in the United States and have benefits and restrictions unique to the J1 visa category. J1 visa holders must return to their native country for at least two years after their visa expires unless they acquire a waiver. A waiver of the 2-year home residence requirement may be obtained provided one or more of the following conditions below are met.

J1 Visa Conditions Explained

• No Objection Statement: A no objection statement (NOS) issued by the government of the J visa holders' home country.
• Exceptional hardship: If a J-1 holder can show that his or her departure will result in extreme difficulty for his or her U.S. citizen or lawful permanent resident dependents.
• Persecution: If a J-1 holder can show that he or she will be persecuted in his or her native country.
• Interested Government Agency: A waiver granted to a J-1 holder by a United States Federal Government agency that has concluded that the person is working on a project for or of its interest and that the person's departure will be harmful to the agency's interest.
• Conrad Program: A waiver granted to a foreign medical graduate who has been offered full-time work in a health care facility in a designated health care professional shortage region or at a health care facility that serves patients from such a designated area.

Depending on the program, the J1 visa may potentially have extra criteria or requirements. For instance, to obtain a J1 visa as an Au Pair, an individual must be between the ages of 18 and 26, fluent in spoken English, and a secondary school graduate. Because of these and other potential J1 visa restrictions, it is important to speak with an experienced immigration attorney to aid with all visa processes and choices.

J1 Visa Vs Asylum

J1 visa holders may be eligible to apply for asylum. Anyone who fear harm or persecution in their country of origin can apply for asylum in the US. This is true, as long as the persecution or harm is due to their race, religion, nationality, political opinions, or membership in a particular social group (PSG). Regardless of their immigration status, an individual must submit their asylum application within 12 months of entering the United States; an exception to this 1-year bar may be made for exceptional or extraordinary circumstances. 

It should be noted that applying for asylum could have negative consequences for an individual's J1 visa status. Although an individual is allowed to apply for asylum regardless of their immigration status, such an application could complicate a person’s J1 visa status. If, for example, the J1 visa expires while the asylum application is ongoing, then the applicant's ability to work or study under the J1 visa would not be available. Although the applicant could still continue their studies/work under their asylum status, if their asylum application is denied, they could be put into deportation proceedings. Furthermore, a denial of an asylum application, could have a negative impact on subsequent visa applications. Given these difficulties, it is critical that F1 visa holders get legal assistance before filing for asylum in order to understand the potential ramifications for their immigration status.

How to apply for asylum as a J1 visa holder

The first step in moving from a J1 visa to asylum is to apply for asylum with the US Citizenship and Immigration Services (USCIS). To do so, submit Form I-589 together with all relevant proof, a recommended personal statement, and strong Country Conditions evidence. Applicants must wait until USCIS schedules an official interview with a USCIS officer who will examine eligibility for protection under US law after filing Form I-589. During the interview, it is critical that the applicant provides as much evidence as possible about their case in order to increase their chances of being authorized for protection. Additionally, candidates have the ability to apply for a work visa after 6 months from the day their application was submitted.  

Once an applicant has completed the relevant paperwork and attended his interview, then they must wait for a decision granting or rejecting protection based on the merits of each individual case. Further steps might be taken depending on the outcome of the interview/decision. If an application is approved, they will be able to adjust their status to that of a Legal Permanent Resident. If an application is not authorized at this point, he or she may be referred to court. An applicant can only be referred to court if they do not have any other valid visa status. If the petitioner has maintained their original J1 visa status, their asylum request may be denied outright and the applicant would then have to leave the country when the J1 expires. If an applicant does not have another legal visa status, they will have to appear before an immigration court again and plead their case. Further measures, such as appealing rulings, are conceivable beyond that point; however, applicants should ensure that they are dealing with skilled legal practitioners because appeals take specific attention and understanding.

Affirmative Asylum Application Process

An alien is in the US who is not in removal proceedings -- but has a credible fear of persecution in his home country -- can apply for asylum through the affirmative asylum process. The affirmative asylum process has the following several steps:

1. The applicant must complete form I-589, Application for Asylum and for Withholding of Removal and submit / send the application, along with required documents, to USCIS.
2. Once the application is received by the requisite USCIS office, then a receipt notice will be sent to the applicant.
3. Next, a biometrics appointment notification will be sent to the applicant letting them know when and where to go to do their fingerprinting.
4. Finally, an asylum interview will be scheduled, where the applicant will go over their case, present evidence, and answer questions relevant to the case. 
5. After the interview the applicant will have to wait until USCIS renders a decision. This can take a few weeks, months, or on occasion even years. 

When filing an affirmative asylum application, an individual should keep in mind that applicants have 1 year from the time they enter the US to file for asylum. An applicant who files after the 1-year bar must demonstrate that there were “extraordinary circumstances” that excuse the delay of the application. In such cases the applicant must show that the extraordinary circumstances directly related to the reason for the late application and that the applicant did not directly cause the extraordinary circumstances. Evidence will be required to demonstrate the extraordinary circumstances. Applicants who face the 1-year bar should consult with an attorney prior to filing their application. An experienced immigration attorney can help an applicant make sure that they present a clear explanation for the exceptional circumstances that resulted in a late asylum application.

In addition, it is also a good idea to have an immigration attorney attend the asylum interview with USCIS. While an attorney is not required at the interview step, and they cannot take part in the interview directly, they can observe the process. Often, the presence of an attorney helps to ensure that USCIS officers conduct the interview process accurately and respectfully.

Switching From A J1 Visa To Asylum Application timelines

The initial asylum application process could last from a few months to several years. The geographic location where an application is filed might also have an influence on the timing. Some parts of the nation get more applications, which might affect the time it takes for an application to be heard by an immigration court or a USCIS officer. While the government has endeavored in recent years to develop a method in which more recent applications are judged first, or within a few months, certain locations have been unable to sustain this process due to the rising quantity of applications. As a result, in some parts of the nation, asylum seekers may have to wait for years before their affirmative or defensive petitions are heard. Affirmative applicants who are referred to court, may face additional years before their case comes before an immigration judge. Asylum is not a quick process and applicants should prepare themselves for a long potential wait for their case to be heard and/or decided. Additionally, appeals of denied cases can extend case timelines even further. An experienced immigration attorney can best explain the timeframes in their areas and establish realistic expectations for an applicant.  

FAQs For How To Apply For Asylum While On a J1 Visa