INS Advises on Asylum and NIV Status

Alan Lee, Esquire
408 Eighth Avenue, Suite 5A
New York, NY 10001

Dear Mr. Lee:

This is in response to your letter of April 5, 1995 and December 29, 1994. In both letters, you asked whether an individual who maintained legal status until the date that he filed an application for political asylum is eligible for change of nonimmigrant status before a decision has been rendered on the asylum matter. You also asked our office to inform you as to whether it is considered that a person who applies for asylum has lost his or her nonimmigrant status just by the act of applying for asylum.

8 CFR section 248 states, in part, that any alien lawfully admitted to the United States as a nonimmigrant... who is continuing to maintain his nonimmigrant status, may apply to have his classification changed to any nonimmigrant classification. Section 248 further indicates that a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition (for change or status) was filed.

A nonimmigrant does not violate status merely by applying for asylum. However, while an asylum applicant is authorized to remain in the United States until his or her asylum request has been decided, the act of applying for asylum does not have the effect of extending nonimmigrant status for the purposes of change or adjustment of status. Therefore, in answer to your question, an asylum applicant who has maintained his or her nonimmigrant status only until the date he or she applied for asylum, and not during the pendency of the asylum application, is not considered to have maintained nonimmigrant status for the purpose of change of status.

To resolve any misunderstanding of opinion letters, please note the following clarification of policy: If an alien applies for asylum prior to the expiration of his or her authorized period of stay, and continuously maintains lawful nonimmigrant status during the pendency of the asylum claim, he or she can be considered to have maintained nonimmigrant status for the purpose of applying for a change of nonimmigrant status under Section 248 of the Immigration and Nationality Act.

I apologize for the delay in responding to your inquiry. I hope that this response is helpful.

Sincerely,

Yvonne M. LaFleur
Chief, Nonimmigrant Branch
Adjudications