Many people enter the United States with a valid B-1/B-2 tourist visa, F-1 student visa, even H-1 B work visa, or another temporary visa and later file for asylum. Years later, they may qualify professionally for an EB-1, EB-2 National Interest Waiver, or EB-3 immigrant petition.

A common question is whether approval of Form I-140 allows them to apply for a Green Card inside the United States.

In most cases, the answer is NO if the person’s original nonimmigrant status expired several years earlier.

A Pending Asylum Application Is Not Lawful Nonimmigrant Status

For employment-based Adjustment of Status, INA § 245(c)(7) generally prevents an EB-1, EB-2, or EB-3 applicant from adjusting status if the applicant is not in lawful nonimmigrant status when Form I-485 is filed.

Filing an asylum application does not extend a person’s B-1/B-2, F-1, or other temporary immigration status. Once the person’s authorized stay shown on Form I-94 expires, the person is generally no longer maintaining lawful nonimmigrant status.

This remains true even when:

The asylum application was filed before the I-94 expired;
The asylum application has been pending for many years;
The applicant received an asylum-based employment authorization document; or
USCIS has not yet decided the asylum case.

An asylum work permit authorizes employment, but it does not create lawful immigration status.

What Is the Person’s Immigration Status?

The most accurate description is:

Out of lawful nonimmigrant status with a pending asylum application.

A person with a bona fide pending asylum application may be considered to be in a period of authorized stay for certain unlawful-presence purposes. However, a period of authorized stay is not the same as lawful nonimmigrant status.

This distinction is important because immigration law treats the following concepts differently:

Lawful immigration status;
Authorized stay;
Unlawful presence;
Employment authorization; and
Protection from removal while an application is pending.

A person may have a pending asylum application and valid work authorization while still being out of lawful nonimmigrant status for employment-based Adjustment of Status.

The Limited 180-Day Exception Under INA § 245(k)

INA § 245(k) provides a limited exception for certain employment-based applicants.

This provision may forgive up to 180 aggregate days of:

Failure to maintain lawful status;
Unauthorized employment; or
Other violations of the terms of nonimmigrant admission.

The violations are generally measured after the applicant’s most recent lawful admission into the United States.

For example, a person whose I-94 expired fewer than 180 days before filing Form I-485 may potentially qualify under INA § 245(k), assuming all other legal requirements are satisfied.

However, someone who has remained in the United States for several years after the I-94 expired will ordinarily have exceeded the 180-day limit. A pending asylum application does not stop the person from being out of lawful status for purposes of INA § 245(k).

Lawful Status and Unlawful Presence Are Not the Same

A bona fide pending asylum application may prevent certain time from counting as unlawful presence for purposes of the three-year and ten-year reentry bars under INA § 212(a)(9)(B)(iii)(II).

However, this does not mean the person has maintained lawful nonimmigrant status.

A person can therefore be:

Out of lawful status for Adjustment of Status purposes; but
Not accumulating unlawful presence during some or all of the period while asylum is pending.

Unauthorized employment, denial of the asylum application, removal proceedings, and other facts may affect this analysis.

Does Having an Approved EB-1, EB-2 NIW or EB-3 Solve the Problem?

No. Approval of an EB-2 National Interest Waiver I-140 confirms that the applicant qualifies for the immigrant visa classification. It does not automatically establish eligibility to file Form I-485.

Even if the person has an advanced degree, exceptional ability, significant professional accomplishments, or work that benefits the United States, the applicant must still independently qualify for Adjustment of Status.

A person who has remained in the United States for several years after the expiration of B-1/B-2 or another nonimmigrant status will generally not be eligible to obtain an employment-based Green Card inside the United States through Form I-485.

Possible Exceptions

An applicant may still qualify in limited circumstances, including:

Exception 1. INA § 245(i) Grandfathering [Amnesty law, you had to have filed an I-130 or I-140 petition or Labor Certification before 04/01/2001]

Certain people may adjust status despite an overstay, unauthorized employment, or entry without inspection if they were the beneficiary of a qualifying immigrant petition or labor certification filed on or before April 30, 2001.

INA § 245(i) is not a general amnesty program. It is a narrow grandfathering provision with specific requirements.

Exception 2. A Later Lawful Admission

A person who later departs and returns through a qualifying lawful admission may potentially rely on INA § 245(k), provided the person does not accumulate more than 180 days of violations after that most recent lawful admission.

Travel should never be attempted without a full legal review. Departure may trigger reentry bars, abandonment issues, removal consequences, or other grounds of inadmissibility.

Can the Person Use Consular Processing?

An approved I-140 may sometimes be used for immigrant visa processing through a United States consulate abroad.

However, consular processing can be dangerous for someone who has lived in the United States after the expiration of their status. Before leaving, the person must be evaluated for:

Unlawful-presence bars;
Unauthorized employment;
Prior immigration violations;
Removal proceedings or removal orders;
Fraud or misrepresentation;
Asylum-related travel issues;
Grounds of inadmissibility; and
Eligibility for any required waiver.

Leaving the United States without obtaining legal advice may result in the person being unable to return.

Conclusion

A pending asylum application does not create lawful nonimmigrant status and does not automatically preserve eligibility for employment-based Adjustment of Status.

A person whose B-1/B-2 or other temporary status expired years earlier will generally be unable to obtain a Green Card inside the United States based solely on an approved EB-1, EB-2 NIW, or EB-3 I-140 petition.

Every case requires a careful review of the applicant’s entry history, I-94 records, asylum filing, employment history, travel, immigration court history, and possible statutory exceptions before filing Form I-140, Form I-485, or beginning consular processing.

This article provides general information and is not a substitute for legal advice regarding an individual immigration case.

This can also be shortened into a website FAQ or converted into a LinkedIn post.

To start your legalization journey in the U.S., call SHEPELSKY LAW GROUP today at (718)769-6352, or schedule your paid consultation directly at https://shepelskylaw.cliogrow.com/book