Asylum applicants often ask us about maintaining their current non-immigrant status or losing status while their asylum cases are pending. Quite often, the asylum applicant is an F-1 student, who has been in the US for some time, and while in the US may have incurred basis for asylum. Or the student, may have experienced some type harm during one of the trips to her home country now creating basis for her well-founded fear. In such cases, the applicants are often uncertain about what happens to their student status after applying for asylum. So, we decided to post this article in a format of several actual questions from our clients and detailed answer provided by attorney Ismail T. Shahtakhtinski.
Question: I came to the US with an F1 visa. Now that I filed the I 589 for asylum, what kind of visa I am on? Is the F1 still a valid visa or is that canceled at this point? If I am still in F1 status while my asylum case is pending, what will happen if I stop going to school or otherwise lose my F-1 status?
Answer: If you maintain your F-1 status (i.e. continue attending required classes, do not work without authorization, pay tuition, etc.), you will remain in F-1 status during the processing of your asylum application. If you drop school, then you will lose your F-1 status, but will maintain “lawful presence” due to your pending asylum case. Note, that the words “visa”, “status” and “lawful presence” have different meanings. Visa is only required to enter the country. After the person enters the country, she gets status and her visa becomes irrelevant. The length of status is determined by the type of visa used to enter. The CBP officer will normally place a stamp in the passport of the admitted alien, showing the classification, i.e. type of status and the end of that status. So, for example, a person admitted with tourist visa (B1/B2) will usually get 6 months’ status; while a person with F-1 student visa will be in status until the end of school program. If the F-1 visa holder drops from school, his status will be terminated. But, if he timely filed for asylum or some other immigration benefit and that application is still pending, then he will still be allowed to remain in the US, i.e. will have “lawful presence”, despite not having a status. So, when he drops school, he will lose his F-1 status, but will remain in the period of lawful presence until his asylum case is decided. Losing status during the asylum case will affect the procedural aspect of the asylum case as described below. It will also determine which options are available to the applicant if her asylum claim is denied.