Alternative Ways To Get a Green Card While Asylum Case Is Pending
Hello everyone,
This is my old article. I decided to update it today because of the changes in 2025.
Since my practice includes many asylum cases, I am frequently asked about alternative ways to get a green card while asylum is pending. “Asylum pending” refers to the period after an individual has applied for asylum but before a final decision has been made on their application.
Three preliminary concepts: lawful entry, lawful status, and unlawful presence
Generally, there is no prohibition on having more than one type of application pending with U.S. Citizenship and Immigration Services (USCIS) at the same time.
Aside from winning asylum, probably the most common way that asylum applicants obtain a Green Card is through marriage to a U.S. citizen. But there are other ways, and I will discuss some of those today.
Firstly, let’s discuss three key terms: “lawful entry”, “lawful status”, and “unlawful presence.”
First of all, to obtain an adjustment of status, an alien must enter the U.S. lawfully. Of course, there are exceptions, such as for immediate relatives, children under 21, and parents of a U.S. citizen. However, other than these exceptions, an alien must enter lawfully to be eligible for permanent residency status later on.
A person attains lawful status in the U.S. when they enter with a visa (or via a visa waiver), adhere to the visa’s terms (e.g., not working without proper authorization), and their authorized stay hasn’t expired (you can verify your status expiration here). Such individuals are deemed “in status.”
Conversely, “unlawful presence” pertains to those who stay in the U.S. beyond their authorized period. For every day you overstay, you accumulate a day of unlawful presence. Overstaying by more than 180 days, followed by an exit from the U.S., results in a three-year re-entry bar. Overstaying by a year or more and then leaving triggers a 10-year re-entry bar, commonly referred to by lawyers as the 3/10 year bar. It’s essential to realize that this bar only activates upon leaving the U.S. If you stay, the bar doesn’t apply. If you’re facing (or might face) this bar, returning to the U.S. is still possible, but it requires a waiver (or a provisional waiver). Obtaining such waivers can be challenging and costly.
For individuals who entered the U.S. illegally, a unique set of challenges arises. In essence, most will need to exit the U.S. to secure their Green Cards, and this can prove quite arduous due to potential re-entry barriers. Those in this predicament might qualify for a provisional waiver or be able to secure their Green Card via INA § 245(i) (elaborated on below). If you find yourself in this situation, consult an attorney. Ensure they provide a clear roadmap detailing the journey from your current status to obtaining a Green Card, addressing questions like: Will you need to depart from the U.S.? What’s the strategy for re-entry?
A crucial point to note: if you’re currently “in status” and meet the criteria to acquire your Green Card within the U.S. (referred to as “adjusting status”), you generally should submit the application (form I-485) prior to the expiration of your lawful status. By doing this, even if your status expires while the I-485 is under review, you remain eligible for status adjustment. If there’s a need to exit the U.S., it’s imperative to consult with an attorney to ensure your eligibility to depart, secure the Green Card, and re-enter. The topic of leaving the U.S. to obtain a Green Card will be addressed in the concluding part of this series, so keep an eye out.
Temporary protective status gives opportunities
Temporary protected status (TPS) has long been used as a humanitarian solution for migrants who are unable to return home safely, but efforts to give them a path to citizenship have reignited the debate around the U.S. immigration policy.
For instance, Ukrainian nationals could apply for TPS to get an “lawful status” required for changing status for many employment based green card applications, such as EB-3, EB-2, E-3 and green card based on diversity lottery.
Generally, there is no prohibition on having more than one type of application pending with U.S. Citizenship and Immigration Services (USCIS) at the same time.
Alternative Paths to a U.S. Green Card
If your asylum case processing is experiencing delays or is possibly advancing to appeals in higher courts, it could be beneficial to consider alternative routes to obtaining a U.S. green card. For instance, you could consider marrying a U.S. citizen, securing a spot in the diversity visa lottery, or finding a U.S. employer to sponsor you.
Once more, there’s no restriction against maintaining multiple types of applications concurrently with U.S. Citizenship and Immigration Services (USCIS).
Generally, being in pending asylum status is not considered being “in status” for the purposes of an adjustment. Therefore, EB1-A, EB-2, EB-3, and E-2 are not available options for immigrants without first leaving the US.
Another issue arises when an individual with pending asylum leaves the US: they could face a ban of either 3 or 10 years, depending on the circumstances.
Family Petition
Here are family-based immigration categories, excluding the immediate relative categories I discussed earlier:
- A Lawful Permanent Resident (LPR) can petition for a spouse.
- An LPR can petition for an unmarried child under 21.
- A U.S. citizen can petition for an unmarried child over 21.
- A citizen can petition for a married child.
- A citizen can petition for a sibling.
If you fall under any of these categories, your relative can file an I-130 petition on your behalf. These categories vary in their waiting periods, as outlined in the U.S. State Department Visa Bulletin. Countries like Mexico, China, India, and the Philippines often face extended waiting times, also highlighted in the Visa Bulletin. Once the Visa Bulletin’s date aligns with or surpasses your I-130 form’s filing date (the “priority date”), you’re eligible to apply for a Green Card. Still, obtaining the Green Card might require leaving the U.S.
How do you determine if leaving the U.S. is necessary for your Green Card?
To secure a Green Card from the mentioned categories without leaving the U.S., you must have lawfully entered the country and maintain “in status” (as previously discussed). A pending asylum case doesn’t count as “in status.” This means you must possess another valid, unexpired status (e.g., F-1 or H1b). Given the prolonged waiting times for many categories, few individuals can acquire Green Cards without departing.
There are some exceptions. The most notable is under INA § 245(i). It stipulates that individuals physically in the U.S. by December 20, 2000, who were beneficiaries (or sometimes children of beneficiaries) of family- or employment-based petitions, or Labor Certification petitions filed by April 30, 2001, might be eligible for a Green Card in the categories above without leaving the U.S. If you believe INA § 245(i) applies to you, consult a lawyer. Another exception pertains to those with TPS, but these scenarios tend to be intricate. Seek legal advice if this applies to you. For basic details about TPS and status adjustment, you can refer to this link.
To secure a Green Card from the mentioned categories without leaving the U.S., you must have lawfully entered the country and maintain “in status” (as previously discussed). A pending asylum case doesn’t count as “in status.” This means you must possess another valid, unexpired status (e.g., F-1 or H1b). Given the prolonged waiting times for many categories, few individuals can acquire Green Cards without departing.
There are some exceptions. The most notable is under INA § 245(i). It stipulates that individuals physically in the U.S. by December 20, 2000, who were beneficiaries (or sometimes children of beneficiaries) of family- or employment-based petitions, or Labor Certification petitions filed by April 30, 2001, might be eligible for a Green Card in the categories above without leaving the U.S. If you believe INA § 245(i) applies to you, consult a lawyer. Another exception pertains to those with TPS, but these scenarios tend to be intricate. Seek legal advice if this applies to you. For basic details about TPS and status adjustment, you can refer to this link.
Employer Petition
Employment-based Green Card petitions span various categories, from EB-1 to EB-5, where “EB” signifies “employment-based.” While some categories entail a waiting period (with certain countries experiencing longer waits), others don’t. Detailed information is available here. A few categories, such as EB-1, EB-2/National Interest Waiver, and EB-5, allow self-sponsorship, while others necessitate employer sponsorship. Some also offer “premium processing” for expedited processing at an additional cost. Typically, employment-based applications are intricate, and hiring a lawyer for guidance is advisable. USCIS provides a comprehensive breakdown of each employment-based category and their respective prerequisites.
Similarly to family-based petitions, you’d generally need to be “in status” to get your Green Card without leaving the U.S. (a pending asylum application doesn’t qualify). If not, you’d need to exit the U.S. to secure your Green Card. This is where premium processing might be useful. There are also potential exceptions in certain employment-based categories: if the violation duration was under 180 days or if the period exceeded 180 days due to a “technical violation” or other factors outside the applicant’s control, potentially including those with a pending asylum application. It’s crucial to note that if you’ve accrued unlawful presence, departing could invoke the 3/10 year re-entry ban (previously mentioned). Moreover, employment-based immigrants might be eligible for the same exceptions as family-based ones, such as INA §245(i) or possibly TPS. Given the complexities, consulting a lawyer when considering status adjustment via employment is essential.
A word of caution regarding the EB categories: I’ve observed several cases where an individual enlisted and compensated an attorney for assistance with an employment-based Green Card, only to discover later that they were ineligible for the Green Card. While the attorney might have successfully navigated the initial step (the I-140 petition), the individual was ultimately barred from obtaining the Green Card due to reasons like the 3/10 year ban, a previous removal order, or other factors. In many of these cases, the attorney either was aware or ought to have been aware of this beforehand — before the client began incurring expenses — but failed to communicate this to the client. My advice is clear-cut: When consulting an attorney, ensure they outline the entire procedure for you, discuss whether you’ll need to leave the U.S. to acquire your Green Card, and explain how you’ll manage to leave and subsequently return. For added reassurance, consider getting these details in written form.
Matter of Orban and Matter of L-K
Unfortunately, as it for 2025, Matter of Orban is no longer applicable in many cases due to later decisions, particularly Matter of L-K- and subsequent policy clarifications.
Matter of Orban No Longer Applicable in 2025: Explanation and Legal Implications
In the past, it was possible to adjust status while an asylum application was pending due to the Matter of Orban.
As of 2025, the Matter of Orban is largely no longer applicable in many cases due to subsequent legal decisions and policy clarifications, particularly the Matter of L-K- (2004) and later interpretations by U.S. immigration authorities.
What Did Matter of Orban
The applicability of Matter of Orban was overturned or severely limited by the Matter of L-K- (2004) and subsequent policy updates. These changes established that:
- If an individual’s lawful nonimmigrant status expires while an asylum application is pending, it is not merely a technical violation.
- If the asylum case is referred to Immigration Court, the applicant loses eligibility for adjustment of status under INA § 245(a).
- Failure to maintain lawful status is now considered a substantive violation, not a technical one, meaning the person cannot adjust status unless they qualify under INA § 245(i) (the grandfathering provision).
Thus, Matter of L-K- essentially invalidated the reasoning of Matter of Orban, leading to its inapplicability in most cases as of 2025.
The following principles from Matter of Orban are no longer applicable:
- The idea that an asylum applicant’s failure to maintain status is always a “technical violation” – This is no longer true after Matter of L-K-, which clarified that a lapse in lawful status is a substantive issue.
- The possibility of adjusting status under INA § 245(a) if an asylum application was pending when nonimmigrant status expired – This does not apply anymore if the applicant’s case was referred to Immigration Court.
- Reliance on Matter of Orban to justify adjustment applications – Matter of L-K- and subsequent policy guidance supersede Orban, making it unusable as legal precedent in most scenarios.
For individuals who filed an asylum application while in status but later fell out of status, they should be aware that:
- They are likely ineligible to adjust status under INA § 245(a) unless they have another lawful basis to do so.
- They may need to seek relief under INA § 245(i) if they qualify under its grandfathering provisions.
- Alternative legal pathways, such as consular processing or other forms of relief, may need to be explored.
Diversity Lottery
If you’re successful in the Visa Lottery and still maintain a valid “in status”, you might be eligible for an adjustment of status, as previously mentioned. However, if you’ve fallen out of status, you’ll likely need to depart the U.S. to claim your Green Card, unless you qualify for a specific exception, like INA § 245(i).
Always remain mindful of barriers like the 3/10 year bar and other potential impediments to re-entry. If you’re considering leaving the U.S. to secure your Green Card abroad, consult with an attorney. The Lottery process can be nuanced, and it’s essential to ensure you don’t find yourself unable to return to the U.S.
Other Ideas
Apart from the typical methods of securing a Green Card, there are several lesser-known avenues. Some of these might even let you obtain a Green Card without departing the U.S. If you believe you’re eligible for one of these visas, it’s essential to consult an attorney for guidance. For several of these visas, approaching a non-profit organization might be advantageous, especially since many of these visas cater to vulnerable populations that non-profits frequently assist. Now, let’s delve into some of the more obscure ways to achieve a Green Card:
– S Visa: Often referred to as the “informant visa,” it’s designed for those who assist the government in criminal or terrorism-related investigations.
– T Visa: Catered towards victims of significant human trafficking.
– U Visa: This is granted to victims of specific crimes who aid law enforcement in the process.
– SIJ Visa: Intended for young individuals who have faced abuse, neglect, or abandonment. If you’re below 21 and without a parental or guardian’s supervision, you might be eligible.
– VAWA: The Violence Against Women Act provides an avenue for certain victims of abuse (both male and female) to apply for a Green Card. This covers abused spouses, children, and parents.
The Bottom Line
For many individuals, family petitions are the only way to obtain permanent resident status while their asylum applications are pending. However, only immediate family members can be out of status when applying for an adjustment of status.
Being in pending asylum status is not considered being “in status” for the purposes of an adjustment. Therefore, EB1-A, EB-2, EB-3, and E-2 are not available options for immigrants without first leaving the US. Another issue arises when an individual with pending asylum leaves the US: they could face a ban of either 3 or 10 years, depending on the circumstances.
Temporary Protective Status can cure the absence of lawful status for many eligible individuals.
In the past, it was possible to adjust status while an asylum application was pending due to the Matter of Orban. This case allowed certain asylum applicants to apply for adjustment of status under INA § 245(a) even if their lawful nonimmigrant status had expired while their asylum case was still pending. However, this principle has since been overturned or severely limited, particularly by the Matter of L-K- (2004) and subsequent policy updates.
As a result, as of 2025, the Matter of Orban is no longer applicable in many cases. The failure to maintain lawful status is now considered a substantive violation rather than a mere technical issue. If an asylum application is referred to Immigration Court, the applicant loses eligibility for adjustment of status under INA § 245(a) unless they qualify under a different exception, such as INA § 245(i).