Should you apply for asylum before or after the end of the permitted stay?

Jennifer Paulino, New York managing attorney | Marble Law

New York & immigration managing attorney at Marble Law

Published June 12, 2025 · 3 min read

Key Takeaways

Your legal status expiration is based on your I-94 record, not your visa: Your stay is determined by the “admit until” date—not the visa sticker in your passport.
You must apply for asylum within one year of entering the U.S.: Missing this deadline can lead to denial unless you prove exceptional circumstances.
It’s better to apply while you're still in valid status: Staying in status during your application process gives you a stronger legal position.
New cases are usually scheduled quickly: Under the LIFO system, many applicants are interviewed within 45 days of filing.

When does lawful immigration status in the U.S. run out?

Your immigration status in the U.S. is tied to your I-94 arrival/departure record, not your visa's expiration date. The visa allows you to enter the U.S., but your I-94 form tells you how long you can stay. This “admit until” date varies depending on your visa type—for example, student visas often allow you to stay for the "duration of status" (D/S), while tourist visas give a fixed number of days.

It’s crucial to track your I-94 expiration and understand that overstaying—even by accident—can seriously affect your ability to apply for benefits like asylum. If your status expires and you remain in the U.S. without permission, you may begin accruing unlawful presence, which can complicate your case later.

When is the best time to apply for asylum?

If you're considering asylum, timing is everything. U.S. law generally requires you to apply within one year of your last arrival, regardless of your visa or status. That means you need to plan carefully to avoid being late—and to keep your options open.

Before permitted stay

Filing for asylum while still in valid status is usually the best choice. This keeps you in a stronger legal position. If your asylum application is denied, you may still have options to extend or change your status, and you're less likely to face removal proceedings right away.

After the end of the permitted stay

You can still apply for asylum after your status has expired—but it’s riskier. You’ll need to show why you didn’t file within one year of entering the U.S. and may need to prove extraordinary circumstances (like medical emergencies) or changed conditions in your home country. Without that, your application could be rejected for being too late.

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How soon will your asylum case be heard?

U.S. Citizenship and Immigration Services (USCIS) uses a “last in, first out” (LIFO) system to prioritize new asylum applications. This means your case may be scheduled within 45 days of filing if you submit your application now.

However, timing can vary depending on your specific situation. If you’ve overstayed your visa or have other immigration complications, your case might face additional delays or scrutiny.

What is the average approval rate for asylum requests?

Asylum approval rates in the U.S. change year to year and vary by location. In general:

Affirmative asylum cases (filed directly with USCIS): Have a 25% to 45% approval rate, depending on jurisdiction and case details.
Defensive asylum cases (filed in court to avoid removal): Tend to have lower approval rates and longer processing times.

Your chances depend on the strength of your case, the evidence you provide, and the experience of your legal representation.

Why you may want to consider a lawyer when applying for asylum

Applying for asylum is complicated, especially if you’ve overstayed your visa or are close to your one-year deadline. A qualified immigration lawyer with Marble Law can help you understand your options, prepare your application correctly, and make sure your case meets USCIS requirements. They can also guide you if you’re applying late or facing removal proceedings. With an attorney’s support, you’re better positioned to avoid mistakes, strengthen your case, and navigate interviews or court if needed.