By Richard T. Herman, Esq. — Immigration Attorney (30 + Years)
Herman Legal Group — The Law Firm for Immigrants • Book a confidential consultation
Key Insight:
You can stay in the U.S. lawfully until your asylum is decided or a judge issues a final order.
At a Glance: How to Legally Stay in the U.S. While Your Asylum Case Is Pending (2025)
| Situation | Legal Option | What It Does | Risk Level | Best For |
|---|---|---|---|---|
| Case delayed for years | Keep asylum pending + renew EAD | Authorizes continued work and lawful stay while awaiting decision; a pending asylum application allows you to remain in the U.S. lawfully | Low | Applicants with stable jobs and records in order |
| No interview yet | Wait in “oldest case” track | USCIS prioritizes newest & oldest files by office capacity | Low | Affirmative asylum at USCIS level (USCIS policy) |
| Extreme delay | File Mandamus / APA lawsuit | Asks a federal court to compel USCIS or EOIR to act on a case | Moderate – legal costs | Backlogged cases (2–5 + years) (AIC/NILA advisory) |
| EAD expired or expiring | Renew I-765 + 540-day auto-extension | Extends work authorization while USCIS processes renewal; you may receive employment authorization through EAD renewal while your asylum application is pending | Very low | Timely EAD filers (USCIS auto-extend) |
| Seek Alternative Relief | TPS, U visa, family or employment-based petition | Some options, like TPS, provide temporary status while your asylum or other immigration application is processed | Varies | Those eligible for other forms of relief |
Why the Asylum Backlog Matters for Asylum Seekers
As of 2025, over 3.4 million cases are pending in immigration courts and more than 1 million at USCIS (TRAC data • DHS OIG 24-36 report). The U.S. asylum system is facing unprecedented strain due to these extensive backlogs. Additionally, the backlog for asylum applications at USCIS, including the affirmative asylum backlog, has surged to approximately 9.5 million cases as of 2022.
The immigration court backlog now exceeds 1.6 million cases as of January 2022, further highlighting the strain on the system. The pandemic exacerbated existing backlogs and introduced new delays in immigration processing, further compounding the challenges faced by the asylum system. Backlogs in asylum processing can prolong family separation, putting individuals in danger in their home countries. According to the Transactional Records Access Clearinghouse (TRAC), which tracks immigration backlog statistics, these delays have reached historic levels. The backlog affects the timely adjudication of asylum claims, making it harder for applicants to receive prompt protection.
You may remain in the U.S. lawfully while your asylum case is pending so long as you continue to comply with address updates, EAD renewals, and hearing/interview notices. However, USCIS asylum applicants face an estimated average wait time of over six years for a decision. In some cases, asylum seekers wait over ten years for their cases to be adjudicated due to backlogs. Delays in asylum applications can adversely affect the mental and emotional health of applicants, adding to the challenges they face during this prolonged process. Delays in the asylum process can lead to profound anxiety and depression among asylum seekers.
Work Authorization (540-Day Auto-Extension Rule)
If you renew your EAD (employment authorization document) on time, you automatically receive up to 540 days of continued work authorization while USCIS processes the new card (USCIS auto-extension policy).
Expert Tip: Submit your I-765 renewal 90–180 days before expiration to avoid any gap in work eligibility. Asylum seekers are eligible to apply for an employment authorization document after their asylum application has been pending for 180 days by filing Form I-765. The Asylum Seeker Work Authorization Act aims to reduce the wait for work permits for asylum seekers from 180 days to 30 days, which could significantly improve their ability to support themselves during the asylum process. Congress is considering legislation to expedite the asylum process by modifying work authorization rules.
Understanding USCIS and EOIR Delay Tracks
USCIS operates two scheduling tracks for interviews: the “recent-filing” track and the “oldest-pending” track. These tracks are part of the affirmative asylum process managed by USCIS, which is a non-adversarial procedure for individuals seeking protection from persecution. Local office capacity decides your order (USCIS interview scheduling page). The LIFO (Last In, First Out) approach used by USCIS has compounded the backlog by prioritizing newer cases over those that have been pending for longer. The number of immigration judges in the U.S. is currently insufficient to handle the backlog effectively, with only about 682 judges available. Affirmative asylum applicants must attend asylum interviews at the designated asylum office. During these interviews, an asylum officer conducts a non-adversarial assessment of the applicant’s claim, evaluating credibility and eligibility for asylum (interview with an asylum officer), which is a critical step in the adjudication process. After filing their application, asylum seekers must typically attend a biometrics appointment.
If your case is in immigration court (defensive asylum), you can stay in the U.S. until the judge issues a final order — just never miss a hearing (EOIR Automated Case Information). On average, asylum seekers wait about four years for a decision in immigration court. As of August 20, 2023, pending affirmative asylum cases reached 974,571, further illustrating the scale of the backlog. In defensive asylum cases, the asylum seeker can be represented by an attorney during their hearing in front of an immigration judge, which can significantly impact the outcome of their case. If an asylum application is denied, the applicant’s case may be referred to an immigration court for removal proceedings.
Checking Case Status
For asylum seekers navigating the U.S. immigration system, staying informed about your asylum case status is essential—especially given the extensive backlogs and processing delays that can stretch for years. Whether your asylum application is pending with U.S. Citizenship and Immigration Services (USCIS) or in immigration court, regularly checking your case status helps ensure you remain compliant with immigration law and do not miss critical updates that could affect your employment authorization or hearing dates.
Mandamus & APA Lawsuits: When Waiting Is Too Long
A mandamus lawsuit is filed in federal district court to order federal agencies such as USCIS or EOIR to act on your case — it does not guarantee approval. Legal experts at the American Immigration Council and the National Immigration Litigation Alliance offer templates and criteria for deciding when to file. If the agency does not approve your application, the case may move to further proceedings, such as immigration review before an immigration judge. Biden’s administration is aiming to decrease backlogs by creating a new docket for family cases, attempting to resolve them within 300 days. However, funding shortfalls have contributed to staffing inadequacies at USCIS and EOIR, worsening backlogs. The Biden administration implemented a new regulation called the ‘Circumvention of Lawful Pathways’ rule in May 2023, which presumes that some asylum seekers are ineligible for asylum unless they meet certain exceptions.
Important Note:
Once you sue, be ready for any decision — approval or denial — as the court simply forces USCIS to decide.
Comparison: Your Legal Paths to Stay in the U.S.
| Option | Pros | Cons | Ideal For |
|---|---|---|---|
| Stay & Renew EAD | Keeps work and lawful presence | Uncertain timeline | Stable job holders |
| File Mandamus Suit | Forces agency to act | Legal fees; possible denial | 3–5-year delays |
| Seek Alternative Relief (TPS, Marriage AOS, U/T/VAWA) | Creates independent path to status (e.g., temporary protected status (TPS) can provide work authorization and relief from deportation; some options may lead to permanent status or permanent residence) | Eligibility limits | New family ties or victim cases |
| FOIA or Case Inquiry | Ensures records are complete | Minimal impact on speed | Lost files or address errors |
Nationwide Lawyer Comparison (Asylum Backlog & Mandamus Experience)
Compare federal litigators and defense specialists with proven asylum track records. Herman Legal Group leads this field for personalized representation nationwide.
| Firm | Why They’re on This List | Useful Links | Best For |
|---|---|---|---|
| Herman Legal Group (HLG) | Nationwide asylum & mandamus practice; 30 + years; multilingual staff | Consultation • About • Reviews | Long-pending cases; EAD renewal advice; federal lawsuits |
| Kuck Baxter Immigration | Litigation-focused firm with frequent asylum appeals | Asylum Info | Defensive cases & appeals |
| Kurzban Kurzban Tetzeli & Pratt | Authors of leading immigration treatise; high-level litigation | Immigration Practice | Complex appeals and APA litigation |
| Joseph & Hall, P.C. | Known for mandamus actions and impact litigation | Immigration Litigation Page | Colorado and nationwide delay suits |
| Siskind Susser | Publishes national immigration law updates & class litigation | Blog | Systemic delay & class cases |
| Murthy Law Firm | Renowned for education and EAD/asylum resources | Asylum Articles | Individual filings & renewals |
Practical Steps to Stay Safe and Compliant
- Renew your EAD early (I-765 online filing).
- Update address within 10 days of moving (AR-11 form).
- Monitor your hearing date (EOIR case status). Attend all hearings to ensure your due process rights are protected.
- Consider mandamus if delay > 2 years and you can document hardship.
- Keep records organized: receipt notices, EAD cards, FOIA responses. Submit additional evidence when requested to strengthen your case.
- Seek legal representation: Having an attorney can improve your chances of success, help you navigate complex immigration proceedings, and ensure your rights are protected.
Fast Fact:
Pending asylum gives you lawful presence, not “lawful status.”
Expert Tip:
A timely I-765 renewal extends work authorization for 540 days (USCIS rule).
Important Note:
mandamus lawsuit forces action, not approval (AIC/NILA advisory).
Government and Authoritative Resources
- USCIS Asylum Overview – USCIS is one of the primary immigration agencies under the Department of Homeland Security (DHS), responsible for processing asylum applications and other immigration benefits. Asylum offices are the specific locations where asylum interviews are conducted.
- USCIS Interview Scheduling Policy
- USCIS EAD Auto-Extension Policy
- TRAC Immigration Backlog Data
- American Immigration Council Mandamus Guide
Notes:
- Immigration agencies include USCIS, the Executive Office for Immigration Review (EOIR), and others involved in processing asylum and immigration cases.
- EOIR stands for Executive Office for Immigration Review, which handles immigration court proceedings and adjudicates asylum and removal cases.
- DHS stands for Department of Homeland Security, which oversees immigration agencies such as USCIS.
- Asylum offices are the locations where asylum interviews are conducted.
Key Takeaways
- You can claim asylum in the U.S. if you meet eligibility criteria.
- You can stay in the U.S. lawfully while your asylum is pending.
- If you are granted asylum, you receive legal protection, the right to work, and a pathway to permanent residence.
- If you are denied asylum, you may face removal, but you can appeal or seek other relief.
- Understanding the consequences of asylum denial is important for planning your next steps.
- Renew your EAD on time for a 540-day automatic extension.
- Mandamus/APA may help break extreme delays.
- Keep USCIS and EOIR updated on your address and case status.
- Compare top lawyers — start with Herman Legal Group for customized strategy.
Author Bio
Richard T. Herman is an immigration lawyer with 30 + years of experience helping asylum seekers, families, and professionals across the U.S. He co-authored Immigrant, Inc. and leads the Herman Legal Group — The Law Firm for Immigrants.
