Apply for family based GC with pending Asylum application

AlphaX_26

New Member
Hi everyone. thanks in advance for your help.

Here is the situation: my wife has a pending asylum application, and I am a green card holder. My question is that can I file I-130 for her and adjust her status (485) based on marriage given that she has a pending asylum application? Assuming that we can do that, does she need to exit the State for consular AOS or can it be done inside of the US? She was on J-1 before the pending asylum. She does not have 2-year residency requirement.
 
AOS = the process of getting permanent residency from within the US. The process from outside the US is Consular Processing, not AOS.

She is not eligible for AOS as she is not in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen) and she is out of status. Having a pending asylum application doesn't give her status. She hasn't accrued unlawful presence, so she won't trigger a ban if she leaves the US do do Consular Processing. But by leaving the US, she would be abandoning her asylum application (unless she got Advance Parole beforehand).
 
Thanks a lot for your reply and correcting my mistake about the AOS.

So based on your reply, my understanding is that she is not eligible for AOS (getting GC inside the US), and thus she needs to do Consular Processing. As far as I can tell, abandoning the asylum application would be fine. So do you see any issues with this situation: if we apply for Advance Parole (through the marriage case and not asylum case), and get it before leaving the US, and then doing any steps needed for getting the green card (i.e., leaving the US and Consular Processing, etc.). Would this raise any questions on why somebody applies for asylum, then exits the country that triggers abandoning the asylum case?

EDIT: I think I found the answer to my second question that: it is not possible to apply for AP based on marriage because she is not eligible to file I-485. Is this accurate? So now my question is that: what would be the next step for her after filing I-130?

Thanks again!
 
Last edited:
One issue that may need raising - if she goes to consular processing, where would she do it? I don't think there is a problem with the principle of abandoning the asylum case if she has another avenue to a green card, but if she does something to make it seem as though there was misrepresentation involved in the claim of asylum - like freely going back to her claimed country of persecution to process the spouse visa - it might. @newacct , any insight on this?
 
Thanks @SusieQQQ ! What if we do the consular processing in another country? Is there such an option to choose or they will assign (presumably the origin country)?
 
Thanks @SusieQQQ ! What if we do the consular processing in another country? Is there such an option to choose or they will assign (presumably the origin country)?

Generally, consulates will not schedule appointments for people who do not have either nationality of the country they are situated in, or long term legal residence in that country (such as work or student visa). I’m not sure if there are any exceptions to this.
 
Hi everyone. thanks in advance for your help.

Here is the situation: my wife has a pending asylum application, and I am a green card holder. My question is that can I file I-130 for her and adjust her status (485) based on marriage given that she has a pending asylum application? Assuming that we can do that, does she need to exit the State for consular AOS or can it be done inside of the US? She was on J-1 before the pending asylum. She does not have 2-year residency requirement.
I believe the best option is to wait until either you become citizen and apply for her or she gets her asylum approval whichever is earlier.
 
Top