VSC Advises on Impact of Asylum on NIV Status
Alan Lee
Attorney at Law
408 Eighth Avenue, Suite 5A
(31st St. on 8th Avenue)
New York, NY 10001
Dear Mr. Lee:
This is in reference to our discussion in New York City of maintenance of status for nonimmigrants who file for political asylum. First, let me say that I found the language used in our December 20, 1994 correspondence regrettable. Statements and general correspondence attributed to Headquarters employees do not replace policy, but we improvidently characterized Ms. Bednarz’s views as arbitrary. I do not share the view of the author of that remark.
The Service holds that the filing of an application for political asylum does not constitute a violation of nonimmigrant status. An alien may maintain, including extend, his/her nonimmigrant status despite having filed an application for asylum.
In the instant matter, EAC 86-019-50691, the beneficiary apparently filed for political asylum on October 11, 1991 while maintaining status as a nonimmigrant visitor. According to your records the applicant’s status expired on December 20, 1991. While the filing of the asylum application in October of 1991 did not terminate the applicant’s authorized period of stay, it also did not serve to extend a nonimmigrant’s period of authorized stay. When the petition for change of status was received on October 27, 1995, the applicant was no longer maintaining nonimmigrant status.
I believe that our decision denying the change of status is correct. Section 245 requires that an alien be maintaining nonimmigrant status in order to be eligible for a change of status.
Sincerely,
Willian R. Yates
Center Director
27MM6B21