Our office has begun receiving questions about when an asylee becomes eligible to seek a green card. Unfortunately, the guidance from USCIS is still unclear on this matter.
U.S. immigration law allows an asylee to become a lawful permanent resident (green card holder) after they have been living in the United States with approved asylum status for one year, assuming they are otherwise eligible. This process is called “adjustment of status.” Because these applications often take more than one year to process, many people are asking whether they are permitted to apply for adjustment of status before completing their one year in asylum status. Unfortunately, USCIS has not provided clear information on this issue.
What USCIS Has Said:
In February 2023, USCIS updated their policy manual. The new guidance states that if an applicant applied for adjustment of status before reaching one year in asylee status, but their application is approved after they reach one year in asylum status, they are considered to be properly granted a green card. In other words, as long as the application was approved after reaching one year in asylum status, it does not matter when it was filed. However, this guidance does not say that USCIS must approve such an application, only that it can be approved.
At a recent meeting, USCIS declined to clarify exactly when an asylee can or should file their green card application. USCIS stated that the decision about when to file is more “art than science.” In general, USCIS has the authority to deny an application if someone is not eligible at the time an application is filed or adjudicated. On the other hand, an officer could choose instead to request additional evidence to allow the applicant to prove that they have remained in the United States for a year in asylum status. Either outcome seems possible, and USCIS has not given any definitive guidance about how such an application will be treated.
So, What Should I Do?
Sadly, there is no definitive answer to this question – it will be different for each individual person and their family. The safest course of action is obviously to wait until one year has passed since the grant of asylum status. However, given that processing times for this type of application can be several years, many people understandably wish to file early. The closer you file to the one-year deadline, the greater the chance that your application will be approved without issue. The earlier you file, the more likely it is that your application could be denied or that you could be required to submit additional evidence to prove that you have remained in the US in asylum status for one year. Importantly, please note that you can apply for a green card multiple times. If you file early and your application is denied, you have the right to refile. Other than losing the fees you paid for the first application, you should not be impacted by having your application denied for this reason. Ultimately, some people will prefer to take the risk of filing early, since their immigration status will not be impacted if their application is denied, while others will prefer not to risk having to pay the filing fees if their application could be denied.
If you wish to discuss your case with an experienced attorney, do not hesitate to contact our office at (312) 427-6163.