Hello! I'm on F1 status and considering applying for asylum. I'm working toward my PhD degree which normally requires more than 5 years. Now I'm in my first year and considering to apply for asylum in order to avoid the 1-year bar. I understand that my case would not be referred to a judge if I am denied by the asylum officer in the interview, as long as I am still in F1 status. My question is, can I reopen the asylum case after the expiration of my F1 status (possibly after 6 years later or more)? Or is there a time limit that I would not be able to reopen the asylum case in the future because I am a F1 student while applying for asylum? 6 years is a long time and I'm not sure if I could continue to fight for an initially unsuccessful asylum application. Really need your help, thank you!
No need to reopen your asylum. Assuming you file an asylum application now, assuming it is denied at the USCIS asylum interview, you are correct to note the next step would not be a referral to the immigration judge since you are under valid F1 status. Now what could happen at this point depends on you. If you maintain your F1 status, meaning going to school, not to engage in unlawful employment, etc, your status will remain valid. But if you engage in anything that is contrary to your F1 status, you will be most likely be terminated. My experience has been when an international student is terminated and if you are from certain countries, ICE will follow up to make sure you are either immediately placed into removal proceedings or you leave the country. This is when you can state your asylum again in front of an immigration judge.
On the other hand, let’s say six years later, when you maintain your F1 status and graduate with a Ph.D. degree, you probably will find yourself with much more options than working on asylum again. For example, you might have a job offer and gain your immigration status that way. Besides realistically, six-year is a long time. How would you be able to convince anyone your six-year-old asylum claim is still valid? But assuming you still want to pursue asylum based on new facts, a new asylum application can be filed based upon your “change of personal circumstance”.
I have an associated office in Binghamton, in case you would like to discuss this further. You may email me at ESQOLIVER@GMAIL.COM.
Asylum is one of the most difficult areas of immigration law and one where many sharks operate and unauthorized practice of law happens. That is to say two things: 1. It is very difficult if not impossible to successfully present an asylum claim without competent assistance of an immigration attorney well experienced in asylum law. 2. Depending on a venue, there are manifold individuals out there, more numerous than in any other area of immigration law, who purport to offer services to potential refugees for a fee and either pose as attorneys and thus engage in outright fraud or try to convince applicants that the attorneys are two expensive and not necessary and often push applicants to commit fraud to “enforce” their claims. Beware of such personalities and try to seek out legal help from a licensed, experienced and competent immigration attorney. Remember: frivolous, that is deliberately fabricated asylum application may result in many troubles including complete ineligibility for life for any immigration benefits including immigrant status though bona fide marriage to USC or by petition of USC child over the ager of 21.
You are wise to be aware of the one-year mark. There are a few options. Even if your asylum case doesn't get referred to the immigration court, you can ask that your case be transferred there, even if you are in valid F-1 status. Reopening your case after your PhD program is complete will be difficult. and most likely you'd have to file for asylum a second time. If that's the route you go, then make sure you file the I-589 immediately after your program ends - remember, there are two exceptions to the one-year rule: changed country conditions and exceptional circumstances. You graduating might be considered an exceptional circumstance.
You will have to have a full consultation with a good immigration attorney to explain this fully. The 1-year bar may not apply where "extraordinary circumstances" exist. The regulations provide , see 8 C.F.R. § 208.4(a)(5)(iv), that maintaining lawful immigration status for example during at least part of the one-year period MAY BE an extraordinary circumstance exception to the requirement that the application be filed within 1 year. In other words you will need to file within a reasonable time after your status expires. However, there are circumstances where this exception will not apply, and so you must consult with an attorney and discuss fully to see if this applies to you. NOTE: this is not legal advice and you should still have a consultation to determine whether (a) it makes sense to wait; (b) whether you should file now in any event; or (c) whether you should not even file given the country conditions and strength of your claim.
Best of luck.
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