Can I Apply for Asylum While on an F1 Student Visa?
Foreign students in the United States who are unable to return to their native country due to potential persecution may be able to petition for asylum while maintaining their F1 student visa. Once an F1 visa holder applies for asylum, their status is protected regardless of whether they keep their nonimmigrant visa status during the asylum application procedure. Due to the pending asylum case, even if the F1 visa expires or lapses, the applicant is shielded from "unlawful presence."
If an asylum applicant wants to maintain their F1 visa status, they must continue attending classes, avoiding unauthorized employment, paying their tuition on time, and generally maintaining good academic and social standing. Once an individual has an asylum case pending, they can, however, choose to give up their F1 student visa. If an applicant allows their visa to expire or breaks the terms of their F1 visa, they are still covered by their asylum application and cannot be put into deportation proceedings.
How To Apply For Asylum on an F1 Visa
To apply for asylum on an F1 visa, holders will undergo a similar process to all other asylum seekers in the US. To be eligible for asylum, the applicant must show they have a credible fear of returning to their home country due to past or future persecution due to race, religion, nationality, membership in a particular social group (PSG), or political opinion. Persecution could also refer to acts carried out by the government or a group that the government cannot or will not control. Applicants must also not be able to relocate to another part of their home country to escape the noted persecution.
It is important to keep in mind that applicants cannot stake their asylum claim merely on poor living conditions, like high crime rates, poor economic opportunities, or conflict in their home country. The asylum seeker must demonstrate that they were personally targeted based on one of the protected grounds or reasons stated above. F1 visa holders seeking asylum in the US are students who return home for a visit and deem their country too dangerous to return to due to personal persecution. In such a case, a student should apply for asylum within one year of their most recent entry into the US. Asylum applicants must apply for asylum within this time period because of the 1-year bar for asylum applications, which states that asylum seekers must apply within a 12 month time frame from entry into the US. Applications beyond this time frame must provide an acceptable/demonstrable reason for the delay in the application.
Asylum Application Types For F1 Visa Holders
F1 visa holders can apply for affirmative asylum. Anyone in the US not in removal proceedings may be eligible to apply for affirmative asylum. The asylum application is sent to the US Citizenship and Immigration Services (USCIS), and an interview with the applicant will be scheduled. USCIS will decide on the case after the interview. If the asylum application is denied and the applicant has a viable US visa, like an F1 student visa, the applicant will have to leave the country once their visa expires. If the asylum application is denied and the applicant does not have another viable US visa, then the applicant will be referred to immigration court and will have an opportunity to plead his case before an immigration judge.
Affirmative Asylum Application Process
The asylum process is can be complex, and there are details that F1 visa holders should be familiar with before applying. The following are the steps for applying for asylum as a foreigner living in the US who is not in removal proceedings:
- Complete form I-589: Application for Asylum and for Withholding of Removal.
- Submit the application, along with the required and recommended documents, to USCIS.
- USCIS sends a receipt notice of the application to the asylum seeker.
- USCIS will notify the applicant of their biometrics appointment via a letter detailing when and where to go for fingerprinting.
- USCIS will schedule and notify the applicant of their asylum interview. During the interview, the applicant will go over their case, present evidence, and answer questions relevant to the case.
- Wait until USCIS renders a decision. Decision times can range from a few weeks to several months or, on occasion, years.
After 150 days have passed from the receipt notification date of an asylum case, applicants are eligible to submit their application for a work permit or Employment Authorization Document (EAD). Once a total of 180 days have passed from the receipt notification date of an asylum case, the applicant will be eligible to receive the EAD. Once an applicant has an EAD card, they can legally work in the US until their case is decided. EAD cards must be renewed and can be renewed as long as the asylum case is pending.
Outcomes for F1 Visa Holders Seeking Asylum
After an affirmative US asylum application is approved, the applicant will be granted asylum status and allowed to remain in the US indefinitely and apply for Legal Permanent Residency. They will also be eligible to apply for social security, medical benefits, as well as be able to petition for their dependents, including their spouse and unmarried children under 21, to join them in the US. Once asylum is granted, the applicant is no longer considered an F1 student visa holder, and they do not need to maintain/renew their F1 visa anymore.
However, if the asylum application is denied, the F1 visa holder faces a few different options. If they maintained their F1 nonimmigrant visa status during the asylum process, they with continue to be eligible to stay in the US under the terms and for the duration of their F1 student visa. After they graduate from their current study program and/or their F1 student visa expires, they will be required to leave the country. It is important to note that F1 student visa holders attempting to adjust status to another visa status may find it difficult to do so with a denied asylum claim.
If the applicant did not maintain their nonimmigrant F1 visa status during the asylum process and is denied asylum, their case will be referred directly to immigration court for removal proceedings. They will not be permitted to apply for an adjustment of status to another kind of visa, except for a marriage-based green card. If an immigration judge denies the asylum claim as well, then an order of deportation will be issued. There are some additional legal options like appealing to the Board of Immigration Appeals (BIA) or voluntary departure but these processes can be complex and costly. Anyone considering applying for asylum or who may be in asylum or even deportation proceedings, should consult with a knowledgeable immigration attorney who can assist them through this process.
FAQs for F1 Students Applying For Asylum
Can I apply for asylum while on an F1 visa?
Yes, you can apply for asylum while on an F1 visa. Asylum is a protection granted to individuals unable or unwilling to return to their home country due to persecution or a well-founded fear of persecution based on their race, religion, nationality, political opinion, or membership in a particular social group. It does not matter what visa type you have when applying for asylum.
Will applying for asylum affect my F1 visa status?
Applying for asylum does not automatically affect your F1 visa status. However, if your asylum application is denied and you do not have another lawful basis to remain in the United States, then you may be subject to removal from the United States.
How long does the asylum application process take?
The asylum application process can take several months to several years. The length of the process depends on many factors, including the complexity of your case, the workload of the asylum office and/or other variables and factors at the government level. It is therefore difficult to determine with any certainty how long a person’s asylum case will take.
Can I work while my asylum application is pending?
If you have a pending asylum application, you may be eligible to apply for employment authorization after 150/180 days. However, there are specific eligibility requirements that you must meet, and the process can take several months. If you work without authorization, you may be subject to legal penalties and potentially lose your F1 visa.
What should I do if I have more questions about applying for asylum on an F1 visa?
If you have more questions about applying for asylum on an F1 visa, consult an experienced immigration attorney. An attorney can review your case, answer your questions, and guide you on the best course of action. You can also visit the USCIS website for more information on the asylum application process.