CAN I ADJUST MY STATUS IF I HAVE ASYLUM PENDING?
Watch the video that accompanies this article.
Pending asylum: WHAT CHANGED?
Some time ago I made a video analyzing how, under very specific circumstances , a person with pending asylum could explore adjustment of status under another category. Today I want to update that information because we have more case law, a much stricter immigration policy, and now a new initiative to revoke B-1/B-2 visas for people who subsequently applied for asylum.
1. First consideration:
The first thing to keep in mind is that filing an asylum application with a valid I-94 does NOT extend the B1/B2 visa.
“Filing for asylum while my I-94 was still valid is better than filing it after it expired, but it doesn’t mean my B-2 is frozen forever.”
From this it was inferred that with Pending Asylum one could eventually adjust status?
In the Matter of LK case, the Board of Immigration Appeals determined that:
An alien who does not continuously maintain legal status is not eligible for adjustment of status, except when the failure is not attributable to the alien or is due to technical reasons.
The BIA concluded that, once the asylum application is referred to the Immigration Court, failure to maintain status is no longer considered a technical violation, and the applicant cannot adjust their status.
The Matter of LK case set a key precedent for asylum seekers seeking to adjust their immigration status; in some cases it was helpful in applying for an adjustment of status, some were successful and others were not.
The Appeals Board said “Historically, there were non-precedent decisions and administrative opinions that allowed for more favorable arguments when asylum remained pending before USCIS. But they did not create a general rule that pending asylum equates to legal status.”
Furthermore, in 2021, USCIS issued a non-precedent administrative decision adopting a restrictive interpretation: pending asylum did not constitute lawful nonimmigrant status, and since more than 180 days had passed, the applicant could not use §245(k). However, that decision did not make that interpretation binding precedent for all cases and expressly did not resolve the issue of the technical violation under §245(c)(2), and in practice, favorable adjudications continued to occur in some cases where asylum remained pending before USCIS.
So, yes, there was a window for argument. But a favorable ruling did not create a general right for all people with pending asylum. The problem was precisely the lack of uniformity.
And this explains why TODAY we must be more cautious
Today, with:
a much more restrictive Administration;
more aggressive review of asylum cases;
the initiative to revoke B-1/B-2 status for people who later sought asylum;
and a documented administrative position that distinguishes asylum pending from lawful status,
It cannot be assumed that the same argument that obtained approvals in previous years will continue to obtain the same result today.
Not because that argument was necessarily absurd, but because it was a litigious strategy, not a safe rule.
There were indeed successful cases that relied precisely on the loophole left by Matter of Law, and there were favorable rulings based on the facts, the legal arguments, and how USCIS interpreted that gap. But today, given the current direction of immigration policy, we must be more cautious before recommending that someone stake their entire future on that exception.
In conclusion, there used to be a gray area that produced different results; today that gray area is an increasingly risky bet.
2. Second consideration: Legal status and Illegal Presence
When we are admitted to the United States, we have legal status that remains valid until the date we were authorized to be within U.S. territory. Once that period expires, we may lose our immigration status; however, this does not necessarily mean that we begin to accrue unlawful presence, because there are situations, such as certain pending bona fide asylum applications, in which the law excludes that period from the calculation of unlawful presence.
An illegal presence of more than 180 days but less than one year results in a three-year bar; and an illegal presence of more than one year results in a ten-year bar. This bar is activated once you leave U.S. territory.
Now, what happens when an asylum application is filed while the I-94 is still valid? When, within the authorization period, with a valid status (I-94), we file an asylum application, once the authorization expires, we do not accrue unlawful presence if we have filed a bona fide asylum claim.
DHS says that a pending bona fide asylum claim generally stops the accrual of unlawful presence for §212(a)(9)(B), except for, among other things, unauthorized employment.
Understanding this, we see then that a person can have zero (0) days of illegal presence but years without legal status.
And that difference is precisely what can close the AOS but leave open, depending on the case, the possibility of studying a consular process.
3. Then comes the new B-1/B-2 policy
The AP reports that the Administration is preparing to revoke up to 200,000 B-1/B-2 visas issued between 2016 and 2026 to people who later applied for asylum; and although we don't yet have a full guideline published with all the individual criteria, this new policy adds another layer of vulnerability for those with pending asylum claims.
Although the main obstacle to employment-based adjustment does not stem from the revocation of the B-1/B-2, but from the restrictions of INA §245(c) and the limits of the exception of §245(k), the revocation and its purpose are extremely important, depending on what the current immigration policy seeks.
My concern with this new policy isn't just that someone might lose a tourist visa they probably never intended to use again. My concern is what the government will investigate to justify the revocation and what conclusions might be recorded in their file.
If the conclusion is simply that you no longer meet the conditions for a temporary visitor, we have a problem. But if the government concludes that when you applied for the visa or when you entered the country you already intended to stay and provided false information about that intention, then we may be entering much more serious territory regarding misrepresentation.
The date on which the asylum application was filed does not by itself decide the case, but it can become an important piece within an investigation into the original intent.
The revocation:
eliminate that B-1/B-2 for future trips;
It may generate greater scrutiny about what the true intention was when applying for the visa and entering;
may have additional consequences under deportability laws;
and it does not automatically mean that the asylum is fraudulent or that there is a finding of misrepresentation .
4. The tough question: “So what do I do with my approved I-140?”
PATH A: continue with the asylum
If you truly have a strong case for protection, that should be discussed with your asylum attorney. An asylum approval opens your own immigration route.
PATH B: consular process with approved I-140.
If my asylum application was filed in good faith and I haven't accumulated unlawful presence, I don't necessarily automatically face the ten-year bar upon departure. However, before leaving, it's essential to thoroughly review my entire immigration history, including any B-1/B-2 visa revocations that may have occurred.
5. What would I do before deciding between asylum and consular EB-2?
I would conduct a very serious and honest evaluation of the case, and especially seek good advice from a lawyer who is an expert in asylum law.
If you have an approved I-140 and the asylum claim is very weak, I wouldn't ignore that second option. I would seriously discuss with qualified professionals whether there's an orderly way to utilize my approval through consular processing, and a full review of the B-1/B-2 visa denial, if applicable.
Not all doors are closed!
Perhaps adjustment of status isn't the available option for many cases that have been pending asylum for years. But that doesn't mean an approved I-140 is worthless. There may be a consular route, there may be a route through the asylum process itself if the case is strong, and there may be other alternatives depending on the specific circumstances.
We cannot make hasty immigration decisions. A decision that seemed simple years ago-entering, applying for asylum, and obtaining a work permit-can now have consequences that affect other immigration opportunities. Now we must act strategically, with information, and by considering the entire process .
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Official sources and resources
1. Department of Justice / BIA
Matter of LK-, 23 I&N Dec. 677 (BIA 2004) is the precedent-setting decision we are analyzing regarding asylum applications filed while the applicant held nonimmigrant status, the subsequent expiration of that status, and the restrictions on adjustment of status. Read Matter of LK- on the Department of Justice website .
2. USCIS
Unlawful Presence and Bona Fide Asylum Applications: USCIS explains that a pending bona fide asylum application normally places the applicant within an authorized period for unlawful presence purposes, and that this time does not accrue for INA §212(a)(9)(B), except, among other things, for unauthorized employment. It also defines a bona fide asylum application as a properly filed application with a reasonably provable basis in fact or law and that is not frivolous. USCIS — Guidance on Unlawful Presence
3. INA §212(a)(9)(B): 3- and 10-Year Bars and Bona Fide Asylum Exception. Here is the rule that establishes the bars for unlawful presence and the exception for the period during which a bona fide asylum claim is pending. Read INA §212(a)(9)(B)
4. INA §245: Adjustment of Status and Restrictions for Employment-Based Cases. This is the core rule explaining why having an approved I-140 does not automatically mean you can file an I-485. §245(c)(7) specifically affects employment-based adjustment applicants who are not in lawful nonimmigrant status. Read INA §245
5. USCIS: INA §245(k), exception of up to 180 days for certain employment-based applicants. USCIS explains that certain individuals with EB-1, EB-2, and EB-3 cases may exceed some bars under §245(c) if, since their last lawful admission, the corresponding violations do not exceed 180 days in aggregate. USCIS — Guidance on INA §245(k)
6. Department of State: Employment- Based Immigrant Visas and Consular Processing .
They also have a page in Spanish. Department of State — Employment-Based Immigrant Visa
7. Department of State: Revocation of Nonimmigrant Visas. The Foreign Affairs Manual explains DOS's authority to revoke visas, including INA §221(i), 22 CFR §41.122, and situations in which an individual no longer meets classification requirements. It also distinguishes a revocation from an automatic fraud determination. 9 FAM 403.11 — Nonimmigrant Visa Revocation
8. 22 CFR §41.122 — Revocation of Visas. The federal regulation that elaborates on the authority to revoke a nonimmigrant visa. 22 CFR §41.122
Newspaper source about the 200,000 visas
Associated Press — Plan to revoke up to 200,000 B-1/B-2 visas for asylum seekers, August 24, 2026. Associated Press — Report on B-1/B-2 revocations
This content is for educational and informational purposes and does not constitute legal advice.
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