News & Insights

1. Entering with a Visa (Lawful Inspection and Admission)

Opportunities to Extend or Change Status:

• Visa holders (e.g., tourists, students, or workers) can often apply to extend their stay or change to a different visa category (e.g., from a student visa to a work visa).
• Applicants for green cards through family or employment often require proof of lawful entry to adjust status within the U.S. under INA §245(a).

Eligibility for Asylum:

• Lawful entrants are eligible to apply for asylum if they fear persecution in their home country, provided they file within one year of entry or meet an exception.

Defending Against Removal:

• Lawful entrants have access to a full immigration court process if removal proceedings are initiated, including the right to present defenses such as asylum, cancellation of removal, or adjustment of status.

2. Entry Under the Visa Waiver Program (VWP)

Limited Rights:

• VWP entrants must waive their rights to extend their stay, change status, or challenge removal in immigration court.
• If removal proceedings are initiated, individuals generally cannot request relief unless they are applying for asylum.

Asylum Protections:

• VWP entrants are eligible to apply for asylum, but they must do so within their authorized 90-day stay or face additional complications.

3. Entry Without Inspection (EWI)

Barriers to Adjustment of Status:

• Most individuals who entered without inspection are not eligible to adjust status to permanent residency unless they qualify for specific exceptions, such as:
  • Being a beneficiary of INA §245(i) (grandfathered green card applications filed before April 30, 2001).
  • Filing through VAWA (for victims of abuse).
• They may be required to leave the U.S. and apply for an immigrant visa from abroad, which could trigger a 3- or 10-year bar on reentry depending on their period of unlawful presence.

Eligibility for Asylum:

• Asylum is available regardless of how someone entered the U.S. if they meet the eligibility criteria.

Removal Proceedings Protections:

• In some cases, individuals who entered without inspection are entitled to more constitutional and statutory protections before removal than those under VWP.

4. Key Considerations for Asylum Seekers

One-Year Filing Deadline:

• Asylum applicants must file within one year of arrival unless they qualify for an exception (e.g., changed circumstances or extraordinary conditions).

Derivative Family Members:

• Spouses and children may be included in an asylum application if they were lawfully admitted or are present in the U.S. at the time of filing.