News & Insights

Understanding the Basics of U.S. Immigration Law

• The Immigration and Nationality Act (INA): The INA governs asylum and visa processes in the U.S. It allows individuals to seek asylum if they fear persecution but also permits them to change their immigration status under certain conditions.
• Asylum and Dual Intent: Asylum seekers do not typically hold “dual intent,” meaning you must carefully evaluate whether switching to an H4 visa (which presumes nonimmigrant intent) is permissible in your circumstances.

Key Requirements for an H4 Visa

• Eligibility: You must be the spouse of an H1B visa holder. The H1B visa must be valid and unexpired.
• Maintaining Status: You must have maintained lawful presence in the U.S. to be eligible to apply for a change of status.
• No Unauthorized Work: If you have worked without authorization while your asylum case is pending, this may complicate your eligibility for an H4 visa.

Steps to Transition from Asylum to H4

• File Form I-539, Application to Change/Extend Nonimmigrant Status: Submit this form to U.S. Citizenship and Immigration Services (USCIS) to request a change to H4 status.
• You must demonstrate that you meet all eligibility requirements for an H4 visa.
• Withdraw Your Asylum Application: If approved for an H4 visa, you may need to withdraw your pending asylum case to ensure compliance with immigration regulations.
• Address Potential Overstay Issues: If your asylum application was the only basis for your lawful presence, ensure you have not accrued unlawful presence, as this could lead to complications or a bar to reentry.

Challenges to Consider

• Timeline of Filing: Your application for H4 status must be filed before your asylum application is adjudicated to avoid conflicts in immigration status.
• Impact on Asylum Application: Once you withdraw your asylum application, you cannot reopen it unless there are extraordinary circumstances. Ensure this is the right decision for you.
• Work Authorization: While on H4 status, you may not automatically have work authorization. If eligible, you can file for an Employment Authorization Document (EAD) if your spouse meets certain conditions.