Q: I have a pending asylum case and a pending TPS case. Can I till apply for H1-B or EB - 2 NIW .

A: Yes, it is possible to apply for an H-1B visa or an EB-2 National Interest Waiver (NIW) while having a pending asylum case or Temporary Protected Status (TPS). However, there are important considerations to bear in mind:

1. H-1B Visa:

• Maintaining Status: In order to apply for an H-1B visa, you generally need to be in valid immigration status. If your asylum case is pending and you are not in another valid non-immigrant status (e.g., F-1, J-1), it could be challenging. If you have TPS, this can provide lawful status, but you would still need to go through the H-1B lottery process and meet other eligibility criteria.

• Change of Status vs. Consular Processing: If you're already in the U.S., you would typically apply for a change of status to H-1B. If you're not eligible for a change of status (for example, because you've overstayed or are out of status), you may need to apply for an H-1B through consular processing at a U.S. embassy abroad, which could be risky depending on your current situation.

2. EB-2 National Interest Waiver (NIW):

• Adjustment of Status: You can apply for EB-2 NIW regardless of pending asylum or TPS, but if you are in the U.S. and out of status (e.g., if your legal stay expired while awaiting asylum), it might complicate your ability to adjust status from within the U.S. without leaving the country.

• 245(i) Eligibility: If you’re ineligible to adjust status due to being out of status, you may be eligible under section 245(i) of the Immigration and Nationality Act (INA) if you have a qualifying petition filed before April 30, 2001.

• Dual Intent: Unlike some other visas, both the H-1B and EB-2 NIW allow for “dual intent,” meaning you can apply for permanent residency while in the U.S. under these visas.

Key Considerations:

• Work Authorization: If your asylum application is pending, you may be eligible for a work permit (EAD), which can allow you to work while your asylum case is processed. TPS also allows for work authorization.

• Departure Risks: Leaving the U.S. while your asylum case is pending or without proper advance parole could result in the asylum case being deemed abandoned or create difficulties reentering the country.

A: You can apply for an H-1B or EB-2 NIW even if you have pending asylum and TPS cases. However, each type of immigration status follows its own rules, and applying for additional statuses can sometimes create complications, especially regarding your intent to stay permanently in the U.S. (immigrant intent). The H-1B is considered a dual intent visa, meaning it allows you to apply without affecting your asylum or TPS claims.

For the EB-2 NIW (National Interest Waiver), you’ll need to show you meet the eligibility criteria for a green card. Since this is a pathway to permanent residency, it might affect how immigration authorities view your other pending cases. Balancing multiple immigration cases requires careful attention to your intentions and current status.

You should review the specific requirements for both H-1B and EB-2 NIW to ensure that you meet all criteria before applying. This is especially important to avoid potential conflicts with your asylum or TPS processes.