By attorney: Nadia Khalid
In the past few months, the asylum-seeking process has experienced harsh changes and new policy directives which have changed the factors affecting the credibility and/or provability of an asylum seeker’s case. One of the factors we have noticed while attending asylum interviews is the effect of switching from an alternate visa status to having asylum pending. For instance, switching from an E-2 that has expired to filing for asylum.
Generally, applicants for asylum must file for asylum within one year of entry to the United States. However, in some cases, asylum applicants have “extraordinary circumstances” which allow them to file for asylum past one year of entry. One of the “extraordinary circumstances” is alternative visa status. However, simply having an alternative visa status does not allow an applicant to file for asylum at their discretion. Filing for asylum, even while holding an alternative visa status, must be done in a reasonable amount of time in relation to: the date the alternative visa status is obtained; the date when the precipitating event in your home country occurs; the date when you apply for asylum; and the date when your alternative visa status expires.
Hence, the real question is what constitutes reasonability? In our experience, officers begun to focus on the timeline of when the precipitating factor occurred in your home country that made you seek asylum, and if you took an unreasonable amount of time after entry to the US to apply for asylum even though you have an alternative visa status.
This is important to consider as some people have come to view asylum as simply an alternative visa status. Given the large influx of asylum applications, there has been increased scrutiny to prove an applicant’s asylum claim. Whether there is past persecution and/or fear of future persecution is now weighed with extreme scrutiny especially when an applicant comes with an alternative visa status.
The reason for this scrutiny is, at times, reasonable. Officers see applications where asylum is filed for the sake of procuring legal status in the country, and not because they seek the protection offered by asylum to people who are fleeing their home country from various forms of persecution.
Our advice to those seeking asylum while on an alternative visa status or with an expired visa status is this: research and understand the components of an asylum claim before filing an asylum application. Filing for asylum for the sake of obtaining legal status alone is a double edged sword. While you may be able to obtain legal status temporarily, asylum interviews and decisions are being issued at a much faster pace than ever before. If you file for asylum in the next month, there is a strong likelihood you will be issued an interview within a few months and based on the strength of your claim, you will either be recommended approval or referred to court. Once you are in court, you are in active removal proceedings. And while the court process can take 2-4 years with an option to appeal the final decision, it is still a very long and involved process to have to undergo if asylum was filed in the first place just for the sake of legal status and not for the sake of protection from persecution, past and/or future.
If you have any questions or are thinking about filing for asylum, please call our office at 713-589-2085 or email us at [email protected]. We hope to help you determine the best solution for whatever visa status you are currently on or hoping to obtain.