Can an Asylum Applicant Apply for an EB-5 Immigrant Investor or Other Employment Visa?

By: Bernard Wolfsdorf, Esq. and Joseph M. Barnett, Esq.

Can an asylum applicant apply for a green card through employment or investment sponsorship? Answer: Yes, in certain circumstances.

As of September 2016, there were 194,986 affirmative asylum applications pending with USCIS. In Fiscal Year 2015, 84,182 affirmative asylum applications were received by USCIS, an increase of 48 percent over FY 2014. The Trump Administration’s heightened immigration enforcement and removal by the U.S. Department of Homeland Security (“DHS”) may lead to a further increase in applications for asylum.  Unfortunately, since the decision to grant asylum is often a policy matter, it is likely asylum approval rates will decline.

Some asylum applications have been pending for many years, and some applicants may look to other options, such as employment sponsorship to apply for a green card. Last week we were approached by an asylum applicant seeking to obtain lawful permanent residency through the EB-5 immigrant investor category seeking to adjust status without leaving the U.S.

This blog entry discusses some of the major legal issues related to asylum applicants and EB-5 immigrant investor options.  It is not intended to provide a detailed explanation of the asylum or adjustment of status requirements or process.  We recommend that individuals speak with a well-respected U.S. immigration attorney to discuss the specifics of the case to recommend the best immigration options for that situation.

The Immigration and Nationality Act (“INA”) permits the change of an individual’s immigration status while in the U.S., from nonimmigrant or parolee (temporary) to immigrant (permanent) under certain conditions.  For example, INA 245(c)(2) provides that an alien who has failed to continuously maintain a lawful status since entry into the U.S., other than through no fault of his own or for technical reasons, is ineligible for adjustment of status under INA 245(a).  Notably, 8 C.F.R. § 1245(d)(2)(ii) specifically states that individual in lawful NIV status who filed asylum (but whose status has not been revoked) will be considered to have gone out of status “for a technical reason”.

The Board of Immigration Appeals (“BIA”) considered these provisions in Matter of L-K-, 23 I. & N. Dec. 677 (BIA 2004). Here a Ukrainian citizen entered the U.S. as a nonimmigrant visitor and filed an application for asylum with DHS before the expiration of her visa.  The application remained pending as her lawful status expired.  DHS referred the asylum application to immigration court, where it was denied, and then subsequently appealed by the Ukrainian citizen.  During the appeal, the Ukrainian citizen was selected for a Diversity Lottery Visa, so she applied for an adjustment of status.  An immigration judge granted adjustment, but the BIA reversed.

In its decision, the BIA ruled that an individual person in lawful nonimmigrant status who files for asylum and then falls out of nonimmigrant status may be eligible to adjust if an asylum application is pending.  However, that individual is no longer eligible to adjust status if DHS acts on the asylum request by approving or denying the application, referring it to immigration court, or dismissing it.  Because the Ukrainian citizen’s asylum application had been referred to immigration court, she was no longer out of status “for a technical reason,” preventing her ability to adjust status.

While the BIA specifically noted that its “holding is narrow and limited to the factual scenario at issue in this case,” it provides guidance on how an asylum applicant may, if the timing is right, adjust to lawful permanent resident status through an EB-5 investment.

There are 3 basic steps to this process: (i) enter the U.S. lawfully and obtain nonimmigrant status; (ii) apply for asylum prior to nonimmigrant status expiring; and obtain I-526 approval and file the I-485 application to adjust status prior to the asylum application being denied, referred, or dismissed.  The immigrant investor would also need to meet other substantive requirements for EB-5 and adjustment of status eligibility, as well.

Current processing times for asylum make those for EB-5 applications look somewhat reasonable.  Depending on where one lives, it can take anywhere from 2 to over 6 years to get an asylum interview scheduled, whereas an EB-5 I-526 petition can take about 12-15 months.

For the very few who might be able to mortgage their homes, or otherwise have the funds to invest in EB-5, there are many other considerations to examine.  They include the following.

  1. Travel to a home country will not be possible as USCIS has the right to terminate asylum if it determines that the applicant voluntarily availed himself or herself of the protection of the country of nationality or last habitual residence by returning to such country.
  1. A visa needs to be “available” to file an application to adjust status. For EB-5 investors born in Mainland China that are subject to the EB-5 visa quota waiting line, which is currently 34 months but constantly increasing, it may be difficult to obtain I-485 approval prior to the asylum application being finalized.
  1. To be eligible to adjust status, an applicant cannot have unauthorized employment prior to filing the Form I-485. An asylum applicant cannot work in the U.S. until an Employment Authorization Document is issued, which can only be applied for if no decision is made on the asylum application in 150 days.  Just one day of unauthorized employment will result in the denial of an adjustment application, and there could be 3 or 10-year bar unlawful presence issues once the applicant leaves the U.S.
  1. The approval of an application for adjustment of status is subject to the discretion of the USCIS officer handling the case. However, even if USCIS denies the application, the immigrant investor can renew the application for adjustment of status in front of an immigration judge in removal proceedings.

In conclusion, while it is theoretically possible to obtain a green card through EB-5 or other employment sponsorship when an asylum application is pending, there are many considerations such as timing, travel, employment, and the ability to adjust status that must be carefully reviewed. However, with the Trump Administration’s announcement that it plans to cut refugee admissions by 50%, we can expect to see asylum becoming much more difficult to obtain.

Wolfsdorf Rosenthal LLP is a full-service immigration law firm known worldwide for its unmatched excellence in providing top-quality U.S. immigration representation. Subscribe to our immigration blog to remain updated and contact Wolfsdorf Rosenthal LLP Immigration Law offices if you have any questions. We have Immigration Law Offices in New York and Los Angeles.

This blog was posted in: EB-5, Immigrant Visas
This blog was tagged: Asylum, Investors
This post is designed to provide practical and useful information on the subject matter covered. However, it is provided with the understanding that no legal, tax, accounting, or other professional services are being rendered or provided. If legal advice or other expert assistance is required, the services of a competent professional should be sought.
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