Employment-based immigrationCan I get a talent visa if I have applied for political asylum in the US before?

How the stage of an asylum case affects O-1 and EB-1A

Removal proceedings generally begin when the Department of Homeland Security files Form I-862, Notice to Appear, with the Immigration Court after serving it on the foreign national. Receiving a copy of an NTA does not always establish that EOIR has already docketed the case.

What changes when pursuing O-1 with a pending asylum case

O-1 is a nonimmigrant classification for individuals with extraordinary ability or achievement. Form I-129 must be filed on the beneficiary’s behalf by a U.S. employer, a U.S. agent or a foreign employer acting through a U.S. agent. The beneficiary cannot file the O-1 petition personally.

USCIS should not deny an O-1 petition solely because a permanent labor certification was approved or an immigrant preference petition was filed for the beneficiary. That principle applies to adjudication of the underlying O-1 petition.

An accompanying Change of Status request remains a separate determination. USCIS may evaluate whether the applicant maintained status, filed on time, complied with the terms of the previous admission and otherwise merits approval of the status-related request.

Petition approval does not always mean O-1 status was granted

Form I-129 may request both approval of the O-1 classification and a change from the applicant’s current status to O-1. USCIS can approve the underlying petition while denying the Change of Status portion.

Change of Status may be unavailable when the applicant failed to maintain the previous status, violated its terms, filed after the authorized stay expired without qualifying for an exception or is subject to procedural restrictions arising from removal proceedings.

When USCIS approves the petition without Change of Status, the beneficiary may need to apply for an O-1 visa, if required, and seek admission at a port of entry. Departure should not be planned before reviewing unlawful presence, any removal order, the effect of travel on Form I-589 and current visa-issuance or entry restrictions.

What EB-1A approval provides and when Form I-485 may be filed

EB-1A is an immigrant classification for individuals of extraordinary ability in the sciences, arts, education, business or athletics. The applicant may file Form I-140 as a self-petitioner without a U.S. employer, permanent job offer or labor certification.

Eligibility requires sustained national or international acclaim, recognized achievements and an intention to continue working in the area of extraordinary ability in the United States. USCIS first determines whether the regulatory evidentiary requirements are met and then evaluates the complete record in the final-merits analysis.

Approval of Form I-140 confirms eligibility for the EB-1A immigrant classification at the petition stage. It does not grant lawful permanent residence, lawful nonimmigrant status, employment authorization or protection from removal.

Concurrent filing of Form I-140 and Form I-485

Form I-140 does not always have to be approved before Form I-485 is submitted. Subject to visa availability and all other eligibility requirements, an EB-1A self-petitioner may be able to:

• file Form I-140 and Form I-485 concurrently;
• file Form I-485 while a previously filed Form I-140 remains pending; or
• file Form I-485 after Form I-140 has been approved.

For an EB-1A petition that does not require labor certification, the priority date is generally the date USCIS properly receives Form I-140. The applicant compares that date with the applicable EB-1 date for the relevant chargeability area.

Visa availability is reviewed at filing and adjudication

USCIS publishes a monthly page identifying whether employment-based applicants must use the Dates for Filing chart or the Final Action Dates chart to determine whether Form I-485 may be submitted.

Filing eligibility does not guarantee immediate approval. An immigrant visa must also be available when USCIS makes the final decision on Form I-485.

The adjustment review may include:

• whether the applicant was inspected and admitted or inspected and paroled;
• whether the applicant maintained lawful immigration status;
• whether employment was authorized during each relevant period;
• whether the terms of a prior admission were violated;
• whether INA 245(k) excuses specified adjustment bars;
• whether removal proceedings are pending;
• whether USCIS or the Immigration Court has jurisdiction;
• whether an immigrant visa is available at final adjudication;
• whether any grounds of inadmissibility apply; and
• whether the record supports a favorable exercise of discretion.

How the 2026 USCIS policy affects Adjustment of Status

Statutory eligibility to file Form I-485 does not establish that USCIS will exercise discretion favorably. In May 2026, USCIS issued Policy Memorandum PM-602-0199 describing Adjustment of Status as a matter of discretion and administrative grace rather than a routine replacement for immigrant-visa processing abroad.

Under that policy, Adjustment of Status is treated as extraordinary discretionary relief. An employment-based applicant should therefore prepare to establish both technical eligibility under INA 245 and a persuasive basis for favorable adjudication inside the United States.

Relevant considerations can include the applicant’s complete immigration history, maintenance of status, compliance with filing obligations, credibility, unauthorized employment, prior violations, family and professional ties, humanitarian circumstances and any negative information in the record.

Where Adjustment of Status is uncertain, the applicant should also evaluate whether immigrant-visa processing abroad is legally available. That analysis must account for unlawful presence, removal history, inadmissibility, asylum-related travel consequences, interview-location rules and current visa restrictions.

When INA 245(k) may protect an EB-1A adjustment application

INA 245(k) can make certain adjustment bars inapplicable to qualifying employment-based applicants, including eligible EB-1A principal applicants and qualifying derivative family members.

The applicant generally must be physically present in the United States pursuant to a lawful admission and, after the most recent lawful admission, must not have accumulated more than 180 days in the aggregate of:

• failure to maintain lawful immigration status;
• unauthorized employment; or
• violation of the terms of nonimmigrant admission.

The 180-day calculation is tied to the most recent lawful admission. Parole is not an admission. Entry or reentry on Advance Parole therefore does not restart the INA 245(k) calculation.

Parole can satisfy the separate inspected-and-paroled component of INA 245(a), but it does not automatically satisfy INA 245(k)’s lawful-admission requirement. The two provisions must be analyzed independently.

INA 245(k) excuses only specified adjustment bars. It does not waive fraud or willful misrepresentation, cancel a removal order, establish admissibility, guarantee favorable discretion or override a visa-issuance or entry restriction.

Filing Form I-589 and receiving an asylum-based employment authorization document do not reset the INA 245(k) period. The employment authorization may make covered employment lawful during the document’s validity, but it does not place the applicant in lawful nonimmigrant status.

USCIS referrals and jurisdiction over Form I-485

When removal proceedings are pending, the Immigration Judge generally has exclusive jurisdiction over Form I-485. A significant exception applies to certain arriving aliens, whose adjustment applications may remain within USCIS jurisdiction.

Jurisdiction depends on the applicant’s procedural classification, the charging documents and the current provisions of 8 CFR 245.2 and 8 CFR 1245.2. Approval of Form I-140 does not independently transfer jurisdiction or require EOIR to terminate proceedings.

Effective July 28, 2026, USCIS may refer certain affirmative asylum applications to an Immigration Judge without first conducting an asylum interview. Applicants with a pending Form I-589 should therefore monitor both USCIS notices and EOIR case information.

Administrative closure does not end removal proceedings. The applicant must continue complying with hearing notices, filing deadlines and court orders until EOIR issues an effective procedural decision.

Why a final removal order requires separate procedural action

A final order of removal is not cancelled by the filing or approval of Form I-129 or Form I-140. An approved petition may support a future immigration strategy, but it does not stay enforcement and does not reopen the court case automatically.

Depending on the record, the person may need to consider a motion to reopen before the Immigration Court or Board of Immigration Appeals, a request for a stay, termination or dismissal of proceedings, consent to reapply for admission or another procedure recognized by law.

The available procedure depends on who issued the decision, whether an appeal was filed, applicable deadlines, prior departures, any reinstatement history and whether another ground of inadmissibility applies.

Annual Asylum Fee obligations while another petition is pending

A covered principal applicant with a pending Form I-589 must follow any personal Annual Asylum Fee notice issued by USCIS. The notice identifies the amount due, the payment method, the payment deadline and the consequences of failing to pay.

USCIS generally requires the Annual Asylum Fee to be paid online within 30 days after the applicant receives the notice. The applicant should retain the notice, payment confirmation, receipt and any correspondence concerning a disputed or unsuccessful payment.

Applicants should also confirm whether Form I-589 remains pending with USCIS, has been referred to EOIR, has been withdrawn or has been finally adjudicated. The applicable payment process may depend on the procedural location and status of the asylum case.

Should Form I-589 be withdrawn after an O-1 or EB-1A petition is approved?

Withdrawal of Form I-589 is generally not required before an employer or agent files Form I-129 or before an EB-1A applicant files Form I-140. The petition and asylum case can proceed on separate legal tracks.

Before withdrawing the asylum application, the record should establish:

• whether Change of Status to O-1 can actually be approved;
• whether Form I-485 may be filed and which authority has jurisdiction;
• whether an immigrant visa is available;
• whether INA 245 adjustment bars apply;
• whether INA 245(k) is available;
• whether favorable Adjustment of Status discretion can be established;
• whether consular processing is available without an unresolved inadmissibility issue;
• whether a removal order or pending EOIR case exists;
• whether all applicable Annual Asylum Fee obligations have been satisfied; and
• how withdrawal would affect protection from removal and the applicant’s procedural position.

If the case is before the Immigration Court, sending a withdrawal request to USCIS does not terminate removal proceedings. EOIR must issue the appropriate procedural decision.

Until withdrawal or another final procedural action becomes effective, the applicant should continue responding to USCIS and EOIR notices, attending scheduled hearings and meeting applicable payment or filing obligations.

Leaving the United States while Form I-589 is pending

An asylum applicant who leaves the United States without first obtaining Advance Parole is generally presumed to have abandoned Form I-589. Advance Parole authorizes the person to seek parole at a port of entry, but it does not guarantee parole, admission or elimination of grounds of inadmissibility.

Before departure, the applicant should review:

• whether unlawful presence has accrued;
• whether departure may trigger a three-year or ten-year unlawful-presence bar;
• whether a removal order exists or may be executed through departure;
• whether Immigration Court proceedings remain pending;
• whether INA 212(a)(9)(A), INA 212(a)(9)(B) or another inadmissibility provision applies;
• whether the destination affects the credibility or continued viability of the asylum claim;
• whether a visa interview can be scheduled at the intended consular post; and
• whether current visa-issuance or entry restrictions affect the planned return.

Time during which a bona fide asylum application is pending is generally excluded from unlawful-presence calculations for the three-year and ten-year bars, provided the applicant did not engage in unauthorized employment during the relevant period. This exception does not mean that the applicant maintained lawful nonimmigrant status.

Immigrant visa interviews generally follow the applicant’s residence or nationality

Under the Department of State policy effective November 1, 2025 and updated on July 15, 2026, immigrant visa applicants generally must interview in the consular district designated for their place of residence or, upon request, in their country of nationality. Limited exceptions may apply.

An applicant should not assume that a third-country consulate will accept an EB-1A immigrant visa case. Post designation, residence documentation, local capacity and any applicable exception should be confirmed before travel arrangements are made.

Current visa restrictions must be checked separately

An approved O-1 or EB-1A petition does not override a Presidential Proclamation, Department of State visa-issuance suspension, nationality-based restriction or temporary limitation on visa operations at a particular embassy or consulate.

Department of State notices should be reviewed before scheduling travel and again shortly before the interview. Consular rules can change independently of USCIS petition approval.

Why information in all immigration filings must remain consistent

Form I-129, Form I-140, Form I-485 and consular applications must accurately disclose the applicant’s immigration history, including Form I-589, asylum interviews, court proceedings, visa applications, entries, departures and employment.

Employment dates, education, awards, publications, memberships, professional activities and biographical details in the new petition should be compared with information previously submitted to USCIS, the Department of State and EOIR.

A difference between two filings is not automatically fraud. A finding of willful misrepresentation generally requires a deliberate and material false representation made to obtain an immigration benefit. Material discrepancies should nevertheless be explained with credible documentation rather than ignored.

Denial of asylum is not a frivolous-asylum finding

Denial of Form I-589 does not, by itself, mean that the application was found frivolous. A frivolous-asylum finding requires a separate legal determination involving the knowing fabrication of a material element and compliance with applicable notice and procedural requirements.

The applicant must have received the legally required warning about the consequences and must have had a sufficient opportunity to explain identified discrepancies or implausible aspects of the claim.

If an asylum application is formally found to have been knowingly frivolous, the applicant may become permanently ineligible for immigration benefits under the Immigration and Nationality Act. That consequence does not arise merely because the asylum claim was denied, supporting evidence was insufficient or individual inconsistencies were identified.

Documents to review before choosing the O-1 or EB-1A route

1. A complete copy of Form I-589, including all supplements, declarations, translations and evidence.
2. Every Form I-94 and the complete entry and departure history.
3. Previous visa applications, Forms I-129, Forms I-140 and other immigration filings.
4. Employment authorization documents and records showing the actual dates and nature of employment.
5. USCIS receipt notices, interview notices, requests for evidence and decisions related to asylum.
6. Annual Asylum Fee notices, payment confirmations and correspondence concerning any missed or disputed payment.
7. Any Notice to Appear and confirmation of whether the case was filed and docketed with EOIR.
8. Immigration Court and Board of Immigration Appeals decisions, including any removal order.
9. Evidence supporting the O-1 or EB-1A classification requirements.
10. The current Visa Bulletin and USCIS Adjustment of Status Filing Charts.
11. Evidence supporting favorable discretion if Form I-485 is being considered.
12. Current Department of State notices concerning interview locations, visa issuance, entry restrictions and consular operations.

The review should answer three separate questions: whether the evidence establishes O-1 or EB-1A eligibility, whether a lawful procedure exists for obtaining the corresponding status, and whether the applicant can satisfy the discretionary and procedural requirements of that route.

Frequently asked questions

Conclusion

A pending asylum application does not eliminate the possibility of pursuing O-1 or EB-1A. A qualifying employer or agent may file an O-1 petition, while an EB-1A applicant may self-petition through Form I-140.

The petition is only one part of the process. O-1 requires a separate determination on Change of Status or admission after visa processing. EB-1A requires a separate path to permanent residence through Form I-485 or an immigrant visa.

The viable route depends on the applicant’s last lawful admission, maintenance of status, employment history, INA 245(k), visa availability, USCIS discretion, USCIS or Immigration Court jurisdiction, admissibility, removal history, Annual Asylum Fee compliance and current consular rules.

Form I-589 should not be withdrawn and international travel should not be scheduled until the complete immigration record confirms that the alternative route is legally and practically available.

Official sources