Applying for political Asylum from J1 Visa

J

johnny1987

New Member
Hi all,

My name is Johnny and Currently I'm in the US under a J1 visa, also in my Visa is stamped with the "two year rule".
The thing is that I would like to apply for asylum here in the US. I came here about 20 months ago to get a doctoral degree (totally funded by the US government) but since the situation in my home country has drastically changed (is really bad) I've decided to do some research about the asylum option.

So basically I want to know:

1. Can I apply for asylum if I have more than 1 year here in US?
2. Should I first file a Waiver for my J1 visa? (my current visa will expire in 10 months)
3. Should I wait to get my degree before applying for asylum?
4. What are the consequences if my request for asylum is denied? What will happen to my J1 Visa?
5. What happen if my request is granted? I mean, how my relationship changes with respect to the university?
6. Will I be able to travel some day to my home country to visit my family? or that will not be an option?

Thank you so much for your help, and sorry if I've posted this in the wrong place. This is the first time I post something!
 
Hey Johnny,

I am in a very similar situation (PhD student, 2 year rule applies etc) so I would like to share my experience/knowledge with you. I've researched these things, and some took me a long time to figure out, I will answer to the best of my knowledge. See answers in bold below.

johnny1987 said:
Hi all,

My name is Johnny and Currently I'm in the US under a J1 visa, also in my Visa is stamped with the "two year rule".
The thing is that I would like to apply for asylum here in the US. I came here about 20 months ago to get a doctoral degree (totally funded by the US government) but since the situation in my home country has drastically changed (is really bad) I've decided to do some research about the asylum option.

So basically I want to know:

1. Can I apply for asylum if I have more than 1 year here in US?
As you may already know, there is a 1 year deadline to apply for asylum after you've entered the country. This is usually strictly enforced and most cases get thrown out because they applied after 1 year of entering. Rarely a student visa can get around this rule if it is for 'duration of stay' but I would not risk it. If you can travel to your country safely and come back, I would apply after entering to be on the safe side.
2. Should I first file a Waiver for my J1 visa? (my current visa will expire in 10 months)
You need not get a waiver for J-1 to apply for asylum.
3. Should I wait to get my degree before applying for asylum?
You need not get your degree before applying for asylum.
4. What are the consequences if my request for asylum is denied? What will happen to my J1 Visa?
If your asylum is denied nothing happens to your J-1 status (as long as you maintain it). You can continue on J-1. However depending on why your case is denied (do they suspect fraud etc) it may affect future US visas you apply for.
5. What happen if my request is granted? I mean, how my relationship changes with respect to the university?
If your request is granted, you are free to work and live in the US as an asylee. Your status will be asylee instead of J-1 which is a much better and safer status. In 1+yrs you will be eligible for a greencard.
6. Will I be able to travel some day to my home country to visit my family? or that will not be an option?
You can travel to your home country, but it may lead to the cancellation of your asylee status. I would not risk it.

Thank you so much for your help, and sorry if I've posted this in the wrong place. This is the first time I post something!
Click to expand...
 
Hi Ms.A, thanks for your input, what do you mean by "Rarely a student visa can get around this rule if it is for 'duration of stay' but I would not risk it. If you can travel to your country safely and come back, I would apply after entering to be on the safe side. "??? Isn't lawful status not restricted by the one year deadline? Thanks!
 
According to what my lawyer has told me and what I have researched online, the reason majority of cases are denied is because they don't apply within 1 year of last entry. If your *last* entry was longer than a year ago, I would recommend re-entering.
 
Thanks for your input. I visited a few lawyers for consultation. they said as long as people in lawful status like F1 student visa, if they keep 12 credit hours each semester, they are in status, so they are not bound by the one year. Does re-entering include going to another country other other cop? Thanks.
 
I am not sure if re-entering another country would count (probably?) Obviously don't go anywhere where you think you will be in danger, but the law is very strict on the 1 year deadline. *Sometimes* they provide leniency for students in good standing as you say, but it is *not* a sure thing by any means - it is up to the AO's/judge's discretion to grant such a waiver to the law.
 
johnny1987, if you go back to your country just to reset the one year deadline, you are going to have a difficult time to prove to the officer that you are afraid of persecution in your own country. Don't go back.
You can apply now since you are still in status. That will be one of the exceptions for the one year deadline.
if you try to leave USA to another country and return just to reset your one year deadline, the officer will think you are trying to game the system. Just stick with what you have right now and file.
 
Correct,
as long as you maintain your legal status you can apply after one year.

asylum2014 said:
Thanks for your input. I visited a few lawyers for consultation. they said as long as people in lawful status like F1 student visa, if they keep 12 credit hours each semester, they are in status, so they are not bound by the one year. Does re-entering include going to another country other other cop? Thanks.
Click to expand...
 
thanks gift. so in the I-589 application, how shall people prove they are in status? I'm currently preparing my application? Thanks in advance.
 
I have heard that one year rule applies to every applicant, regardless of your status. If you are late to apply within 1 year, they wanna know why you applied late and if it is excusable. Just not knowing about the deadline is not sufficient to prove that you reasonably missed the deadline. Also, to apply to asylum, you can be in status or out of status - it does not matter.
Source: USCIS website

I am not a lawyer!
 
I have multiple entries into the US from my home country from which I am seeking asylum. In my interview the question of why was not even asked. Nor was it included in my application. (Although there are valid reasons). I agree with mercier that the 1 year deadline is enforced to everyone, in status or not. It is an easy denial for an AO, because they can deny a case only for that reason, without considering the rest of the case.
 
asylum2014 said:
do i have to get any document from the school?
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Yes, finding of the legal status is factual, thus, you should try to make the job of the officer as easy as possible. Prepare documents such as I-20 and enrollment letter, specifically stating that you are attending the school and you are expected to graduate in the future. If already graduated, OPT I-20 and EAD card will suffice.

Ms.A, you are right, the 1 year bar is a challenge to everyone, but those that are in-status are granted an exception. This is called "extraordinary circumstances" as described in 8 CFR 208.4(a)(5)(iv)
 
gift said:
Yes, finding of the legal status is factual, thus, you should try to make the job of the officer as easy as possible. Prepare documents such as I-20 and enrollment letter, specifically stating that you are attending the school and you are expected to graduate in the future. If already graduated, OPT I-20 and EAD card will suffice.

Ms.A, you are right, the 1 year bar is a challenge to everyone, but those that are in-status are granted an exception. This is called "extraordinary circumstances" as described in 8 CFR 208.4(a)(5)(iv)
Click to expand...

To clarify, the law does not immediately grant a waiver to a student in lawful status. As I've said before, and as is stated in the section of law you referenced, it is up to the discretion of the judge/AO. See below;

(5) The term “extraordinary circumstances” in section 208(a)(2)(D) of the Act shall refer to events or factors directly related to the failure to meet the 1-year deadline. Such circumstances may excuse the failure to file within the 1-year period as long as the alien filed the application within a reasonable period given those circumstances. The burden of proof is on the applicant to establish to the satisfaction of the asylum officer, the immigration judge, or the Board of Immigration Appeals that the circumstances were not intentionally created by the alien through his or her own action or inaction, that those circumstances were directly related to the alien's failure to file the application within the 1-year period, and that the delay was reasonable under the circumstances. Those circumstances may include but are not limited to:
(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;
(ii) Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;
(iii) Ineffective assistance of counsel, provided that:
(A) The alien files an affidavit setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard;
(B) The counsel whose integrity or competence is being impugned has been informed of the allegations leveled against him or her and given an opportunity to respond; and
(C) The alien indicates whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not;
(iv) The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
(v) The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and
(vi) The death or serious illness or incapacity of the applicant's legal representative or a member of the applicant's immediate family.
 
johnny1987 said:
Hi all,

My name is Johnny and Currently I'm in the US under a J1 visa, also in my Visa is stamped with the "two year rule".
The thing is that I would like to apply for asylum here in the US. I came here about 20 months ago to get a doctoral degree (totally funded by the US government) but since the situation in my home country has drastically changed (is really bad) I've decided to do some research about the asylum option.

So basically I want to know:

1. Can I apply for asylum if I have more than 1 year here in US?
2. Should I first file a Waiver for my J1 visa? (my current visa will expire in 10 months)
3. Should I wait to get my degree before applying for asylum?
4. What are the consequences if my request for asylum is denied? What will happen to my J1 Visa?
5. What happen if my request is granted? I mean, how my relationship changes with respect to the university?
6. Will I be able to travel some day to my home country to visit my family? or that will not be an option?

Thank you so much for your help, and sorry if I've posted this in the wrong place. This is the first time I post something!
Click to expand...

Question 1 - There are two exceptions to the one year rule, "changed circumstances" and "extraordinary circumstances". The first exception involves things that have happened since you have been in the US that materially affect your eligibility for asylum, like changes in the situation in your home country. Based on what you wrote, you may qualify for the exception, depending on when things changed in your country and if those changes are the reason you are applying for asylum. But you must still file in a reasonable time after those changed circumstances. Extraordinary circumstances are things that affect your ability to apply for asylum and being in lawful status is specifically listed as an extraordinary circumstance. (iv) The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application. It would appear that qualify for both types of exceptions.

Question 2 - Waivers of two year residency are difficult to obtain. You will have to show hardship that is almost as bad as the persecution that you fear if you return to your country. So the asylum application is probably your best bet.

Question 3 - It depends on a lot of factors and you should consult a good attorney (good luck finding one).

Question 4 - If you have a valid nonimmigrant status you will be remain in that status till it expires. But good luck getting another nonimmigrant visa.

Question 5 - An asylum approval shouldn't change your relationship with respect to your university

Question 6 - If you travel home to your country of persecution while in asylum status you may not be able to re-enter the US. But like everything else having to do with asylum, it depends.
 
Hi everyone. It seems this is the most relevant threat to my situation. My situation is as follows:
My wife applied for asylum and she was granted then I also applied to be derivative and I was also recently granted. I came to USA with J1 visa and she also had j2. My question is that do I need to have a viewer for 2 year home country residency requirement or not ot be able apply for GC?
Thanks
 
Oakkas -as far as I know if you are adjusting status/getting a GC through the asylum you do not need a waiver. However if you try to get a GC through marriage or most other means you will need a waiver. I hope that helps.
 
oakkas said:
Hi everyone. It seems this is the most relevant threat to my situation. My situation is as follows:
My wife applied for asylum and she was granted then I also applied to be derivative and I was also recently granted. I came to USA with J1 visa and she also had j2. My question is that do I need to have a viewer for 2 year home country residency requirement or not ot be able apply for GC?
Thanks
Click to expand...

Thanks Ms. A.
It has been a confusing issue to me since everyone tells different story and i did not find any thread which directly related to this issue, maybe I am one that is unique of this situation.
 
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