Many people enter the United States with a valid B-1/B-2 tourist visa, F-1 student visa, H-1B work visa, or another temporary visa and later file for asylum. Years later, they may qualify professionally for an EB-1, EB-2, 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 with a pending asylum application.
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
- USCIS has not yet decided the asylum case
An asylum work permit authorizes employment. It does not create lawful immigration status.
What Is the Immigration Status of Someone With a Pending Asylum Application?
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 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 matters because immigration law treats these concepts differently:
- Lawful immigration status
- Authorized stay
- Unlawful presence
- Employment authorization
- 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. Learn more about the difference between lawful status and unlawful presence.
What Is the 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 nonimmigrant admission terms.
Violations are generally measured after the applicant’s most recent lawful admission into the United States. 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).
Is Lawful Status the Same as Unlawful Presence?
No. 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 while 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 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. Learn more about how employment-based green cards work and what eligibility requires.
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.
Are There Any Exceptions for Pending Asylum Applicants?
An applicant may still qualify in limited circumstances.
Exception 1: INA § 245(i) Grandfathering
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 a Pending Asylum Applicant Use Consular Processing?
An approved I-140 may sometimes be used for immigrant visa processing through a United States consulate abroad. Learn more about adjustment of status versus consular processing before making this decision.
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
- Eligibility for any required waiver
Leaving the United States without obtaining legal advice may result in the person being unable to return. Also be aware that immigrant visa freezes for certain countries may affect consular processing timelines.
What Should You Do If You Have a Pending Asylum Application and an Approved I-140?
A pending asylum application does not create lawful nonimmigrant status. It 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.
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 shepelskylaw.cliogrow.com/book.
Frequently Asked Questions About Pending Asylum
What Does Pending Asylum Mean?
Pending asylum means a person has filed Form I-589, Application for Asylum, with USCIS or the immigration court, and the government has not yet made a final decision on the case. The applicant is waiting for an interview, a hearing, or a decision. During this time, the person may apply for a work permit after 150 days and may have protection from certain unlawful presence consequences. However, pending asylum is not the same as approved asylum.
What Is a Pending Asylum Case?
A pending asylum case is an asylum application that USCIS or an immigration judge has not yet decided. The case may be waiting for an asylum interview at USCIS, a master calendar hearing, an individual merits hearing, or a decision from the Board of Immigration Appeals. A pending asylum case does not mean the person has been granted asylum. It means the government is still reviewing the application.
Is Pending Asylum a Legal Status?
No. Pending asylum is not a legal immigration status. A person with a pending asylum application is not considered to be in lawful nonimmigrant status. This matters especially for people who want to apply for an employment-based green card through adjustment of status. Even if your asylum case has been pending for years, you are generally not in lawful nonimmigrant status for purposes of INA § 245(c)(7). Learn more about the difference between lawful status and authorized stay.
How Many Asylum Cases Are Pending in the U.S.?
As of 2026, more than 2 million asylum cases are pending before U.S. immigration courts and USCIS. The backlog has grown significantly in recent years due to increased filings, staffing shortages, and policy changes. The sheer volume of pending cases means wait times for asylum interviews and hearings can stretch for many years, leaving applicants in prolonged uncertainty about their immigration status and future plans.
How Does a Pending Asylum Case Affect a Green Card Application?
A pending asylum application does not create lawful nonimmigrant status and does not automatically preserve eligibility for an employment-based green card through adjustment of status. Even with an approved EB-2 National Interest Waiver or other I-140 petition, a person whose original visa status expired years earlier will generally not qualify to file Form I-485 inside the United States. Every case requires individual legal review before filing.