If you have successfully filed your asylum application with the United States Citizenship and Immigration Services (USCIS), your case may be pending for several years because of significant backlogs with asylum offices. While your asylum application is pending, your circumstances may change. For example, you may get married. If you marry a United States citizen, you may be able to apply for a marriage-based green card.
This article will help explain 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 directly about your specific case in order to avoid any potential problems or complications.
What are the Benefits of Getting a Green Card through Asylum Status or through Marriage?
If you are married to a United States citizen while your asylum application is pending, you may want to know the difference between the benefits from getting green card through asylum and an immediate relative of a United States citizen based on marriage.
Green Card through Asylum Status
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 will 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 marriage process, you must file the Application to Register Permanent Residence or to Adjust Status (Form I-485) in order to apply for a green card, along with supporting documentation as required by USCIS.
One important difference between applying for a green card based on asylum, compared to marriage, is that asylees do not need to submit an affidavit of support to prove that they will not become a “public charge.” An asylee can receive public benefits such as food stamps and qualify for a green card, whereas a family-based applicant needs to show that he or she has financial support and will not rely on U.S. government for support.
When you receive your green card, the date of your permanent residence will be rolled back one year to account for the year you had to wait before applying.
As an asylee, and even as a permanent resident of the United States after asylum, you have important rights and benefits that are not available to other permanent residents. For example, since asylees are not supposed to use their home countries’ passports, you will be able to apply for a refugee travel document, which allows you to avoid relying on your home country for protection.
The main downside to receiving a green card through asylee status is currently the lengthy wait times before your asylum case is decided. Then, there is always a risk that your asylum application can be denied or referred to immigration court, if the asylum officer decides that you do not have a well-founded fear of persecution in your home country. According to USCIS statistics, as of February 2015, only about 52% of asylum cases were being approved.
Green Card through Marriage
Although asylum applications are supposed to be adjudicated within 180 days from filing, current processing backlogs often make that impossible. Therefore, if you are an asylum applicant, and you married a United States citizen while your asylum application is pending, you may prefer to file for 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 within 4 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 your green card much more quickly. Not only is the process generally faster under the current conditions, there is also no waiting period of a year between your case approval and 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 United States citizen while your asylum application is pending. You must be able to prove that your marriage to your United States 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 have been married to your U.S. citizen spouse for more than two years by the time 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 to and living with your U.S. citizen spouse. If you and your spouse separate or divorce by that time, it can lead to complications in your case. (Please see our related article about Separation/Divorce and Conditional Permanent Residence.)
Do I still Qualify for Asylum if I Married a U.S. Citizen while My Asylum Application is Pending?
Contrary to the 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. Therefore, you may want to pursue your asylum case even after you receive your green card based on marriage. Unlike marriage-based permanent residence, asylum status will allow you to apply for a refugee travel document. With a refugee travel document, you do not have to use your home country’s passport to travel. Traveling with a U.S.-issued travel document better protects you from arrest, harassment, or extradition, which you may be vulnerable to depending on the circumstances of your asylum case.
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 as a back-up plan anymore. 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 had been withdrawn can lead to complications. USCIS will need to make sure that your previous asylum application was not frivolous (containing untrue or fabricated statements). Government entities are 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 case and marriage-based case, you can be investigated for fraud or misrepresentation in either your asylum application, or marriage-based petition, or both.
It is important to consult with 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 learn more about our services and for consultation, please contact us at (703) 527-1779, or via e-mail: [email protected].