Can an Asylum Applicant with a Valid B-1 Visa Withdraw Their Application and Transition to a Student Visa?
If someone enters the U.S. on a valid B-1 visa, applies for asylum within one year, and later decides to withdraw the asylum application, can they maintain their B-1 status and change to an F-1 student visa?
Expert Answer
Overview of U.S. Immigration Law:
The Immigration and Nationality Act (INA) provides the legal framework for non-immigrant visas, asylum, and changes of status within the United States. Each pathway has specific rules and implications, particularly for maintaining or altering immigration status.
Key Considerations
1. Status While Applying for Asylum
- Filing for asylum does not automatically invalidate your existing B-1 visa, provided that you adhere to the terms of your visa (e.g., maintaining the purpose of your visit).
- However, applying for asylum signals an intent to immigrate, which may conflict with the “non-immigrant intent” required for both B-1 and F-1 visas.
2. Withdrawing the Asylum Application
- It is possible to withdraw an asylum application before a final decision is made.
- Withdrawal does not reinstate your original B-1 status if it has expired or been invalidated. If your B-1 visa is still valid and you have not overstayed its authorized period of stay, you can continue using it under its original terms.
3. Changing Status to F-1 (Student Visa)
- To change status to F-1, you must:
- Be in valid non-immigrant status at the time of application.
- File Form I-539, Application to Extend/Change Nonimmigrant Status, with the U.S. Citizenship and Immigration Services (USCIS).
- Demonstrate non-immigrant intent, which can be challenging after applying for asylum due to the expressed intent to stay permanently.
4. Challenges with Non-Immigrant Intent
- Both the B-1 and F-1 visas require proof of ties to your home country and an intent to return.
- Having applied for asylum can create a presumption of immigrant intent, making it difficult to prove non-immigrant intent to USCIS when applying for an F-1 visa.
5. Practical Steps
- If your asylum application is pending and you want to change to F-1, consult an experienced immigration attorney to assess your eligibility and prepare your application.
- Ensure your B-1 status has not expired, as you cannot apply for a change of status from within the U.S. if you are out of status.
Conclusion
Can You Withdraw the Asylum Application? Yes, you can withdraw your asylum application, but doing so does not guarantee that your B-1 visa remains valid.
Can You Change to F-1 Visa? Possibly, but it depends on your ability to demonstrate non-immigrant intent and compliance with B-1 visa terms. Previous asylum applications may complicate this process.
Relevant Legal Framework and Resources
1. Immigration and Nationality Act (INA): INA Section 248 – Change of Nonimmigrant Status
2. USCIS Change of Status Overview: Change My Nonimmigrant Status
3. Form I-539 Instructions: Application to Extend/Change Nonimmigrant Status
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