Q: I’m currently on an F-1 student visa studying in the US. I am afraid to go back to my home country. Can I apply for asylum?
A: Yes, immigrants present in the US may apply for asylum, as long as they have a true non-frivolous claim. Although applicants generally need to apply during their first year in the US, there are some exceptions, including maintaining another lawful immigration status (like your F-1 status.) However, you should still apply as soon as possible.
TPS: Some countries have been designated for Temporary protected Status, or TPS. You should check the list of current TPS countries, and talk with your international student advisor or an immigration attorney about this option as well.
Asylum: Asylum is not just based on being afraid. Your situation/fears need to meet 3 specific criteria, and need to be reasonable. For example, as part of the application, you would provide reports to show that harm you suffered, or are afraid of suffering is reasonable for your country. I’ll outline the general 3 criteria below:
No, you will not be able to enter based on TPS. TPS (Temporary Protected Status) is designed for foreign nationals already present in the US who are not able to safely return to their countries. As you mentioned, there is a particular list of countries the US has designated for TPS. To be eligible for TPS, a foreign national needs to meet several requirements including meeting “continuous residence” and “continuous presence” in the US since their country’s most recent TPS designation date.
This generally means a person has been living in the US without leaving since the date listed on the USCIS TPS chart, with a few rare exceptions.
Example: a national of Nepal needs to have been residing in the US continuously since June 24, 2015, and you can see dates for other countries go much farther back. Once the designation for a country is made, there is a 180 day window to apply. For Nepal this window closes December 21, 2015. Also, sometimes countries will receive a re-registration period. Haiti is an example of a country with a current re-registration period. That means someone from Haiti who already has TPS, is now eligible to reapply in order to extend TPS. The window to reapply in Haiti closes October 26, 2015.
I originally come from Yemen and currently there is a civil war going on there. My brother is a US citizen and he is over 21. Can he petition for me?
Answer: While it is possible to change from a B visa to another visa type, you need to be first eligible for another visa.
TPS: The US will designate other countries for TPS, or temporary protected status for different reasons, including “ongoing armed conflict, such as civil war.” Yemen is not currently listed, but you can continue to check the TPS country list and read more about TPS here.
Asylum: Asylum could possibly be an option, but it would depend on your specific story and facts. This is something an immigration attorney could help you with, after listening to your story in detail. A civil war in a country is not in itself reason for asylum. Check back soon, as I will be posting more details regarding asylum eligibility.
Adjustment through your brother: It would take a long time for you to be able to obtain a green card based on your brother sponsoring you, and you would not have lawful status in the US while you waited. You can see the wait time by looking up the US Department of State’s most recent visa bulletin. A brother falls under the F-4 family sponsored category, and the priority date is October 2002, meaning those from Yemen in the F-4 category have been waiting 13 years.
Student visa: Another option is to apply to a University in the US. Do not enroll while in B1/B2 status, however, you can apply to a program, and have your school, or an attorney assist you with a change of status from B to F-1. A change of status can take 3-5 months, so be sure you have enough time before you B visa expires. Once the change of status is approved to F-1, you would be eligible to enroll.