Morgantown, WV asked in Immigration Law for West Virginia

Q: With a pending asylum case can I apply for eb2niw or H1B?

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2 Lawyer Answers
James L. Arrasmith
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  • Immigration Law Lawyer
  • Sacramento, CA

A: If you have a pending asylum case in the United States, you may still apply for an EB-2 NIW (National Interest Waiver) or an H1B visa. However, there are important considerations to keep in mind.

The EB-2 NIW is for individuals who are highly skilled in their field and whose employment in the U.S. would greatly benefit the nation. This process involves demonstrating your exceptional ability and the significance of your work. Your asylum application status can complicate this process, so it's crucial to understand how these two paths intersect.

Regarding the H1B visa, which is typically for those in specific occupations requiring particular expertise, applying while your asylum case is pending can be complex. The H1B is a dual-intent visa, meaning it can lead to a green card, but it's essential to navigate this carefully given your existing asylum application.

In both scenarios, consulting with an immigration attorney is advisable. They can provide personalized guidance considering your unique circumstances and the intricacies of U.S. immigration law. Remember, each case is different and the outcome can vary based on various factors.

Shawn Shahin Sedaghat
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  • Immigration Law Lawyer
  • Sherman Oaks, CA

A: I am sure you don't just need to know if you can "file", but whether you would be eligible to change your status should your filing be approved. You can file anything with USCIS but whether your filing will get you the result you want is what should matter to you.

There is currently is a precedent decision that can conceivably be the basis of an argument that your filing of an asylum application should entitle you to a change of status. However, This is a legal argument and not something that all USCIS officers accept.

Generally speaking, you have to have a "status" to be able to change it to another status. An asylum filing does not give you "status," but you are allowed to remain here while it is pending adjudication. So whether or not you can change your status depends on certain factors that require much closer examination. I too suggest a consultation with an expert attorney in order to answer this question.

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