What If I Marry a US Citizen While My Asylum Case is Pending?
If you have successfully filed your asylum application with the United States Citizenship and Immigration Services (USCIS) or have your asylum application pending in immigration court, your case may be pending for several years. This is because there are significant backlogs in asylum offices and immigration courts. Although beginning from 2018, asylum offices began a new policy trying to schedule interviews for new cases within 21 days, due to the limited resources, not all new cases get scheduled so soon and some still get thrown into the pile of backlogged cases. This new procedure also caused even longer delays to those cases that were filed prior to the USCIS’s new policy.
While your asylum application is pending, your circumstances may change. For example, you may get married. If you marry a US citizen, you may be able to apply for a marriage-based green card. What are the benefits of becoming a permanent resident through asylum status or through marriage? If you are married to a US citizen while your asylum application is pending, you may want to know the difference between getting a green card through asylum and adjusting your status through marriage with a US citizen. This article will help you understand the difference between these two immigration options and the pros and cons of both. Before making any decision, however, we encourage you to talk to an experienced immigration lawyer about your specific case to avoid any potential problems or delays.
Green card through asylum
If your asylum application is granted, you become an asylee. However, you do not automatically receive a green card. You will be eligible to apply for a green card (permanent residence) one year after receiving your asylum status. Your spouse and children are eligible to apply for a green card if they were admitted to the United States as asylees or were included in your grant of asylum. Please note that you are not required to apply for a green card, but it may be in your best interest to do so.
If you are an asylee, you may apply for a green card one year after being granted asylum, if you:
- Have been physically present in the United States for at least one year after being granted asylum.
- Continue to meet the definition of an asylee (or continue to be the spouse or child of such asylee).
- Have not abandoned your asylee status.
- Are not firmly resettled in any foreign country.
- Continue to be admissible to the United States (a waiver may be available to you if you are now inadmissible).
Similar to the adjustment of status based on the marriage process, you must file the Application to Register Permanent Residence or the Adjust Status Form (I-485) in order to apply for a green card. You will need to supply supporting documentation as required by USCIS.
One important difference between applying for a green card based on asylum, and marriage-based adjustment, is that asylees do not need to submit an affidavit of support to prove they will not become a “public charge”. An asylee can receive public benefits such as food stamps and qualify for a green card. A family-based applicant, on the other hand, needs to show that he or she has financial support and will not rely on US government support.
When you receive your green card through asylum, your permanent residence as asylee will be back-dated to take into account the year you had to wait before applying.
Additionally, as an asylee and as a permanent resident of the United States after asylum, you have important US protection that is not available to other permanent residents. Here is how it works: If you are an asylee you should not use your home country’s passport to travel to another country from the US, because you risk being detained or extradited from the country of your destination to your home country. If you use your home country passport, the country of your travel will treat you as a citizen of the country of your persecution and, if there are any issues or if there is an extradition treaty between the two countries, you risk being sent back to the country of your persecution. To avoid this, an asylee should apply for a refugee travel document. A refugee travel document is a document issued by the US government announcing to the world that the US government granted you asylum protection and that any other country in the world should treat you as a US refugee, without the regard of your national origin. This means you do not have to rely on your home country for protection.
The main downside of obtaining a green card through asylee status is the lengthy wait before your asylum case is decided and the longer wait time to qualify for citizenship than through marriage with a US citizen. There is also always a risk that your asylum application can be denied or referred to an immigration court. This could happen if the asylum officer decides that you do not have a well-founded fear of persecution in your home country.
Marrying a US citizen: Green card through marriage
Although asylum applications are supposed to be adjudicated within 180 days of the date of filing, current processing backlogs often make this impossible. Therefore, if you are an asylum applicant, and you get married to a US citizen while your asylum application is pending, you may prefer to file for a green card based on your marriage instead of waiting for your asylum case to be approved. In most cases, a marriage-based petition will be decided in six months to a year.
The advantage of applying for a green card based on marriage as opposed to asylum is that you would be able to receive it much more quickly. Not only is the process generally faster under the current conditions, but there is also no one year waiting period between case approval and the issuance of your green card. You will generally receive your green card in the mail several weeks after your case is approved.
It is important to note that you must be prepared to answer the immigration officer’s questions on why you decided to marry a US citizen while your asylum application was pending. You must be able to prove that your marriage to your US citizen spouse is valid and in good faith.
If your marriage-based case is approved, you will most likely receive a two-year conditional green card (unless you had been married to your US citizen spouse for more than two years when your application is granted). Before your green card expires, you will need to apply for a renewal, and show that you continue to be married and living with your US citizen spouse. If you and your spouse separate or divorce before that time, it can lead to complications in your case. (Please see our related article about Separation/Divorce and Conditional Permanent Residence.)
Asylum pending: Do I still qualify for asylum if I married a US citizen while my asylum application is pending?
Contrary to common belief, you do NOT need to withdraw your asylum application before your marriage-based case can proceed. It is important to know that you are not required to do so.
You are allowed to have both applications pending at the same time. You can also hold a green card and file for asylum because of the additional benefits and protections accorded to asylees as described above, including traveling with US-issued travel document offering you protection from detention, arrest and extradition to your home country. Therefore, you may want to pursue your asylum case even after you receive your green card based on marriage.
If you do withdraw your asylum application and only proceed with your marriage-based case, you will not be able to apply for a refugee travel document. You will have to use your home country’s passport for travel. Also, if your marriage does not work out, you will not have your asylum application pending any more.
Refiling your asylum case can be tricky
If your marriage ends, or your spouse withdraws their petition for you before you receive a green card, you may want to re-file your asylum application. However, re-filing your asylum case after it has been withdrawn can lead to complications, including a one-year deadline issue.
Furthermore, even if you withdraw your asylum application, USCIS will want to ensure that your previous asylum application was not frivolous (containing untrue or fabricated statements) and did not contain any material misrepresentations making you inadmissible and barring you from adjustment of status. If you file your asylum application again, the government will also likely to look into your background and evaluate your new asylum application more closely. That will lead to even greater delays in your case. If there are any inconsistencies between your asylum and marriage-based cases, you can be investigated for fraud or misrepresentation in your asylum application, or marriage-based petition, or both.
Whether you choose to withdraw your asylum application, adjust through marriage or proceed with both, it is important to consult an experienced immigration lawyer to plan the best immigration strategy for you and your family. Attorney Ismail Shahtakhtinski and I.S. Law Firm have provided immigration help to many immigrants and their families to receive asylum, adjust status based on asylum or marriage and navigate through the complicated immigration procedures. To learn more about our services and for consultation, please contact us at (703) 527-1779, or email: [email protected].
Article Title: What If I Marry a US Citizen While My Asylum Case is Pending?
Short Description: If you have successfully filed your asylum application with the United States Citizenship and Immigration Services (USCIS) or have your asylum application pending in immigration court, your case may be pending for several years. This is because there are significant backlogs in asylum offices and immigration courts. Although beginning from 2018, asylum offices began a new policy trying to schedule interviews for new cases within 21 days, due to the limited resources, not all new cases get scheduled so soon and some still get thrown into the pile of backlogged cases. This new procedure also caused even longer delays to those cases that were filed prior to the USCIS’s new policy.
Author: Ismail Shahtakhtinski
Publisher - Orgnization: I.S. Law Firm, PLLC