An employer may be able to pursue a qualifying employment petition while an employee’s asylum application is pending. Pending asylum does not, however, automatically make the person eligible to change to H-1B status or adjust through an employment category inside the United States. Sponsorship and the worker’s ability to use the approval are separate analyses. [1]
Rules that determine the answer
Employment-based adjustment under section 245 is subject to entry, admissibility, status, and employment restrictions, with specific exceptions such as qualifying section 245(k) cases. An asylum-based EAD permits employment under its conditions but does not itself establish maintenance of a nonimmigrant status. Likewise, change-of-status rules generally require qualifying lawful admission and status, subject to their limited exceptions. [2]
An approved PERM or I-140 ordinarily does not grant status, employment authorization, or protection from removal by itself. [1] Leaving for a visa interview can affect asylum and trigger other immigration consequences, so departure should not be treated as a routine administrative formality. A pending asylum application also has specific unlawful-presence rules that are different from lawful nonimmigrant status; they should not be collapsed into one label. The practical sponsorship review must therefore include the job’s eligibility, the employer’s process, the worker’s status history, visa availability, potential bars, and the route for actually obtaining the benefit. [2]
What to do next
- Identify the proposed petition: a temporary-worker I-129 or an immigrant-worker I-140, with PERM if required.
- Map the complete admission, I-94, employment, asylum, and any court history.
- Evaluate in-country adjustment or change-of-status eligibility before committing to consular processing abroad.
- Keep the asylum case and existing work permission properly maintained unless a separately justified decision is made to change course.
Practical example
An asylum applicant still maintains valid F-1 status and another applicant has no remaining nonimmigrant status. The employer may propose the same H-1B job, but their ability to obtain a change of status can differ.
For related situations, see the PERM ‘determination issued’ status and criminal bars to adjustment of status.
Primary sources
Sources checked: October 31, 2026.