Immigrating the Spouse and Children of Refugees/Asylees
Special laws and procedures allow for asylees and refugees to reunite with their immediate family members. Practitioners who are familiar with family-based immigration already know that lawful permanent resident aliens (LPRs) may file an alien relative petition (Form I-130) for their spouse and unmarried children. Both refugees and asylees may file for LPR status one year after entering as a refugee or being granted asylum, but it takes at least a year for refugees to be granted permanent residence, and approximately twelve years for asylees. Although LPR status entitles them to file the I-130, due to the backlog in the second preference category, they must wait several more years before completing the process. Fortunately, refugees and asylees can immigrate their spouse and unmarried children much faster by classifying them as derivatives.
Persons who have a well-founded fear of persecution in their home country may apply for asylum in the United States, either affirmatively before the Department of Homeland Security (DHS) asylum office or in proceedings before an Immigration Judge. If they are granted asylum, their spouse and unmarried children may be afforded the same status without additional applications, provided they were named on the asylum application and are in the United States. If they were not named on the asylum application or are not in the United States, the principal asylee must file an additional petition to have them classified as derivative asylees.
In both situations, the spousal relationship must have existed on the date the principal was granted asylum. If the parties were not lawfully married in the jurisdiction where the marriage took place, the marriage will not be considered valid and the derivative status will not be granted. Proxy marriages are not sufficient unless the marriage has been consummated. The parties may be estranged, as long as they were legally married when asylum was granted, the marriage is bona fide, and the marriage has not been terminated.
Similarly, for unmarried children, the relationship also must have existed on the date the principal was granted asylum. If the child was conceived but not yet born on that date, the relationship will be considered to exist as of the date of the asylum grant. If the child is adopted, the adoption must have taken place before the child turned 16 and the child must have been in the legal custody of and living with the adoptive parent(s) for two years. If the child is a stepchild, the marriage creating the relationship must have occurred before the child turned 18. If the principal is the mother, it does not matter if the child was born in wedlock. If the father is the principal, the child must either have been born in wedlock or legitimated before turning 18. Otherwise, the father will be required to submit evidence of a bona fide father-child relationship before the child turned 21. Documents establishing that the father has acknowledged this relationship and cares for the general welfare of the child can include the following: money orders or canceled checks, income tax returns listing the child as a dependent, medical or insurance records, school records, or correspondence between the parties.
In some circumstances or at some "high fraud" consular posts it may be necessary to submit DNA test results to establish the parent-child blood relationship. While such testing is voluntary, several consulates routinely "suggest" that it be submitted. The testing may only be performed by the American Association of Blood Banks and the results must indicate a relationship by 99.5 percent probability or higher. The applicant bears the financial responsibility for these tests, which can be quite expensive. Nevertheless, it is often cheaper for the client to have the testing performed rather than trying to prove relationship through other means or challenging the consular post’s denial.
The derivative status ends if the child marries prior to arrival in the United States as an asylee. The unmarried child is precluded from bringing his or her children; derivatives cannot pass derivative status to their children.
Included on the I-589. If the spouse and unmarried children were named on the asylum application (Form I-589) and are in the United States, the procedure is relatively simple. They derived asylum on the date the principal applicant was granted, provided the spousal or parent-child relationship existed at the time the principal was granted asylum (see the discussion below on age-out situations) and none of the bases for denial are present. These include conviction of a particularly serious crime, security threat, or persecution of others.
If the principal was granted asylum by the asylum office, the spouse and children will be issued separate I-94s indicating their asylee status, which allows them to work. They may also apply for an employment authorization document and an unrestricted social security card, which further evidences work eligibility. If the principal was granted asylum by an Immigration Judge, the DHS should schedule a time when the family can appear for processing of the I-94s. Some local district offices, however, refuse to process asylees for I-94 cards.
Not included or residing abroad. If the spouse and unmarried children were not named on the I-589 application or are outside the United States, the procedure is more complicated. In those cases, the principal must file a Form I-730, Refugee/Asylee Relative Petition, within two years of obtaining asylum. Petitions can be filed after two years, but only for extreme humanitarian reasons, such as serious health factors. In those cases, attach a detailed explanation as to why a waiver of this two-year time limitation should be granted. In our experience, these waivers are rarely granted.
The spouse or child does not need to establish an independent claim to persecution, and can be residing within his or her home country or in a third country. The asylee must file a separate I-730 for each family member seeking "accompanying or following-to-join" benefits. The asylee may need to explain why a spouse or children in existence at the time the I-589 application was originally filed were not listed. The spousal relationship must have existed at the time the principal was granted asylum and must continue to exist until the I-730 is approved. After entry as a derivative, neither the spouse nor child may file I-730 petitions for other family members. Spouses or children previously granted refugee or asylum status are ineligible to derive such status from their spouse or parent.
Effect of the Child Status Protection Act. Under prior law, if the child turned 21 before the parent was granted asylum, he or she lost the ability to obtain equivalent status as a derivative. The same was true if the child turned 21 before the I-730 was filed, or before it was approved, or before the child was actually admitted to the United States as a derivative. Fortunately, section 4 of the Child Status Protection Act of 2002 (CSPA), Pub. L. No. 107-208, 116 Stat. 927, remedies that by locking in the child’s age on the date the principal alien applied for asylum status. If the child was unmarried and under 21 on that date, the child preserves derivative status, even if he or she subsequently turns 21. But one must first take into account the effective date of the CSPA and its retroactive effect before determining if it applies.
On July 23, 2003, the U.S. Citizenship and Immigration Services (USCIS) issued an internal memo providing guidance on the implementation of section 4 of the CSPA. On September 30, 2003, the Executive Office of Immigration Review (EOIR) issued a memo regarding grants of conditional asylum based on the Coercive Population Control ground, which also addressed the CSPA as it pertains to children of the asylum applicants or asylees. On August 17, 2004, the USCIS issued a follow-up memo clarifying certain issues. All three of these memos provide consistent interpretations, and are summarized below. This information has also been condensed into a table prepared by USCIS and attached to this article.
Three categories of children can take advantage of the CSPA. The first includes those who were under 21 at the time their parent filed for asylum, provided the I-589 was pending on August 6, 2002 or filed after that date. This category includes children who were named on the I-589 and are residing in the United States, as well as those who were named on the I-589 and are residing outside the country and must derive status through the I-730 process. If the child was not named on the I-589 at the time it was filed, he or she must have been listed on the I-589 prior to final USCIS decision on the asylum application. Prior to the CSPA, a child named on the I-589 application would lose derivative asylum status upon turning 21 and would need to file a separate I-589 to be considered eligible for asylum. Under current interpretation of the law, if the child was under 21 at the time the asylum application was filed, he or she will remain a derivative and will not age out. The child is no longer required to file a separate I-589 petition. Similarly, prior to the CSPA, children who wanted to derive asylum through the I-730 process must have been under 21 at the time it was filed and remain under 21 until entering the United States. Now they will be able to enter as derivatives as long as they were under 21 on the date the I-589 was filed.
The second category includes children of a parent who was granted asylum prior to August 6, 2002 but who filed an I-730 petition prior to the child’s turning 21. These children will also be able to derive asylum status provided the I-730 was pending on August 6, 2002. Form I-730 is considered pending if the Nebraska Service Center (NSC) has not yet adjudicated it or the NSC approved the petition but the U.S. embassy/consulate had not yet issued travel documents to the child. If the child was issued travel documents prior to August 6, 2002 but he or she failed to pick up the documents, the CSPA will not apply.
The third category includes the asylee’s children who aged out on or after August 6, 2002. The I-589 or I-730 could have been filed before or after that date. Keep in mind that section 424 of the USA PATRIOT Act allows beneficiaries of petitions pending on September 11, 2001 to remain eligible as a child for 45 days after turning 21. So as long as the I-589 or I-730 was pending on that date, children who turned 21 on or after June 22, 2002 will still be covered by the CSPA.
Travel. Any travel outside the United States by refugees and asylees should be carefully analyzed before making giving advice or assistance. Asylees and derivative asylees may not travel outside the United States unless they have been provided with a Refugee Travel Document, Form I-571. This is a passport-like, blue booklet that is valid for one year. The application for this document is made on Form I-131, Application for Travel Document. Send the completed form, along with proof of asylee status, two photos, and a filing fee of $165 to the NSC.
Asylees who leave the United States before being granted the travel document may apply for it at a U.S. consulate or port of entry, but there is no guarantee that it will be granted. In cases where the asylee was ignorant of the requirement before leaving, or there was a medical emergency or other compelling circumstance justifying the alien's not meeting the requirements, USCIS district directors will likely favorably exercise their discretionary authority. The asylee must not have intended to abandon asylee status and must have been outside the United States for less than one year. Even if the asylee is re-admitted with the travel document, he or she will be subject to examination and questioning regarding those grounds of inadmissibility that would also constitute grounds for termination of asylum, such as commission of an aggravated felony or being a national security threat.
In addition, the asylee may request parole into the United States for "urgent humanitarian reasons or significant public benefit" pursuant to INA § 212(d)(5). Factors that the district directors may consider include the following: (1) reasons why the alien was originally granted asylum; (2) the circumstances leading to the expiration of or failure to obtain the refugee travel document; (3) whether the alien has returned to his or her country of origin and, if so, the reasons for that return; and (4) the circumstances in which the alien currently finds himself or herself. For a discussion on the process of applying for humanitarian parole, see the November 2002 issue of Catholic Legal Immigration News, p.6. As a final alternative, the asylee may apply for refugee status under INA § 207.
The asylee or derivative should be cautioned about returning to his or her country of feared persecution since it could affect entitlement to asylee status. While it does not result in automatic revocation of asylum, the DHS has the right to inquire whether the asylee has "voluntarily re availed himself of the protection of his country of nationality." This would turn on the original basis for asylum, the reasons for the return, the length of the visit, and what other actions the asylee took while there. For example, visiting a sick relative would not evidence "re-availment," but purchasing or leasing property or establishing business relations might result in the invalidation of an unexpired refugee travel document under 8 CFR §_223.3(b). Any doubts as to the application of the cessation clause should be resolved in the alien's favor. It may be easier for the derivative to return to the home country without facing possible revocation of status than for the principal asylee or refugee.
Asylees who have incurred more than 180 days of unlawful presence prior to obtaining asylee status should also be warned of the risks of travel. Leaving the United States may trigger the three- or ten-year bars to readmission. While that should not affect their reentry with the refugee travel document, it will make them inadmissible should they apply for adjustment of status. Eligibility for a waiver under INA § 209(c) will be discussed in the second part of this article.
Completing, Filing, and Adjudicating the I-730. The I-730 petition is relatively straight-forward. The principal asylee completes, signs, and files the petition, not the spouse or child. The form was last updated on September 18, 2000, and thus the instructions have not been updated to include the changes brought about be the CSPA.
The principal has the burden of proving eligibility for derivative asylum benefits by a preponderance of the evidence (more likely than not). He or she must submit the following: (1) evidence of asylum status; (2) evidence of the family relationship; and (3) a recent photograph of the spouse or child. It may often be difficult and time consuming to obtain recent photographs and other documents, so do not delay in requesting these from your client. Be creative if they are not forthcoming, and make sure you do not hold up submission of the petition beyond the two-year time period. If the application is for a spouse, submit a copy of the marriage certificate and proof of legal termination of any prior marriages. If the application is on behalf of an unmarried child, submit a copy of the birth certificate showing both the child’s and the principal’s name. For fathers, submit proof that the child was born in wedlock, has been legitimated, or that a bona fide relationship exists. Adopted children need further evidence of the adoption and legal custody/residency. Stepchildren need proof of the marriage creating the relationship.
Submit copies (not originals) of the required documents, and include an English translation for those in a foreign language. In some cases, it will be impossible to obtain the original documents. Consult the State Department’s Foreign Affairs Manual to see what documents are acceptable proof of marriage or birth in the pertinent foreign country. If the primary documents are unavailable, secondary forms of evidence, such as church, school, or census records may be accepted. If these are unavailable, submit affidavits from two persons with personal knowledge of the marriage or birth.
Send the I-730, with necessary documents, to the Nebraska Service Center, P.O. Box 87730, Lincoln, NE 68501-7730. There is no fee required. Although the CSPA remedied the age-out problem for applications/petitions pending on or filed after August 6, 2002, there may still be a need to have the I-730 expedited, such as for health or safety reasons. In that case, submit as much documentation as possible that establishes the need for expedited processing and indicate on the form that you are requesting it. Also, write "Expedited Processing Requested" on the outside of the mailing envelope.
The grounds of inadmissibility do not apply to derivative asylees. However, granting the I-730 application is a discretionary act, and the consular officer may deny it if negative factors exist, such as criminal convictions or prior misrepresentations. While a formal waiver pursuant to INA § 212(h) or (i) should not be required, it may mitigate against such negative factors. Derivative asylees are also not subject to the vaccination requirements.
If the NSC approves the I-730, it notifies the applicant on Form I-797. It also forwards the file to the National Visa Center in Portsmouth, NH, which in turn forwards it to the U.S. embassy or consulate having jurisdiction over the area where the asylee’s spouse or child is residing. The embassy or consulate will then notify the spouse or child to appear for an interview. The approval of the I-730 shall remain valid for the duration of the relationship (for spouses, as long as the marriage is not terminated; for children, as long as they do not marry). The spouse or child must pay for all necessary medical exams and arrange his or her own transportation to the United States. The approved I-730 can only be used for one admission to the United States, but there is no time limitation on entering the United States. Upon admission to the United States, the derivative asylee should be given an I-94 authorizing an indefinite stay.
If the embassy or consulate does not believe the spouse or child is entitled to derivative status, it will return the file to the local USCIS service center for revocation. Prior to doing this, it should - although many do not - provide the child or spouse with an explanation for the intended refusal and an opportunity to provide further proof of eligibility. It will send the file back to DHS, which will issue a formal notice of intent to deny. If the applicant is not able to convince the agency of the spouse’s or child’s eligibility, the I-730 will be revoked; if the applicant is successful, DHS will reaffirm the petition and forward it again to the embassy or consulate. Revocation of the principal’s asylum status, for example due to criminal acts, also revokes the validity of the I-730.
If the I-730 is denied, the USCIS will provide a copy of the written decision and reason for the denial to the applicant. Most denials are based on a failure to adequately establish or document the family relationship. If you have additional documentary evidence you wish to submit or you believe the denial was in error, submit a motion to reopen/reconsider to the Director of the NSC. There is no appeal of the denial, but the asylee is not precluded from re-filing the application, assuming it is within the two-year time frame.
Derivative Refugee Status
The spouse and unmarried children of a refugee are eligible for derivative refugee status just as those of an asylee. The application process, which was described in Part 1 of this article, is almost identical to that used by an asylee. If the refugee is in the United States, he or she must submit a Form I-730, Refugee/Asylee Relative Petition, within two years of entering the United States as a refugee.
Only refugees who enter as "principals" may apply for derivative status for their spouse and children. In other words, a child who enters as a derivative may not file an I-730 to immigrate his or her spouse or child. It should also be noted that principals are not able to immigrate their grandchildren as the derivatives of a derivative. Nor are they permitted to file for children of their spouse overseas - typically born after the principal has entered the United States as a refugee - where the principal and child have no blood or stepchild relationship already in existence at the time of the principal’s entry to the United States.
These rules often cause confusion, because refugee applicants are able to include derivatives of a derivative as part of the family unit when applying for refugee status abroad. In addition, they are able to include more distant and even unrelated persons who were part of the same economic household unit prior to flight. If these persons are granted refugee status, they enter as principals and can file I-730 petitions for their family members.
The same age-out rules regarding the PATRIOT Act and the Child Status Protection Act (CSPA) also apply to refugees. But given that refugees begin the process by filing the Form I-590, Registration for Classification as Refugee, substitute that form for every reference to the I-589 asylum application. Just like asylees, the relationship of spouse or child must have existed at the time the principal was admitted as a refugee, at the time of filing the I-730, and at the time of the derivative’s admission to the United States (taking into account the special age-out rules).
Children of refugees should be listed in Section 11 of Form I-590 and be classifiable as a child at the time of the parent’s interview for refugee status. The I-590 or I-730 must be pending on or filed after August 6, 2002 for the age-out rules of the CSPA to apply. Alternatively, if the I-590 or I-730 was approved prior to August 6, 2002 while the child was under 21, the CSPA will apply if the child turned 21 on or after August 6, 2002. If the child had already turned 21 before August 6, 2002, they will be considered a derivative only if they had not yet been issued documentation to travel to the United States by that date (I-590 and I-730 still considered pending). This summary of the CSPA implementation has been condensed into a table prepared by USCIS and is attached to this article.
If the derivatives travel to the United States with the principal refugee or within four months, they will be considered "accompanying." If they come more than four months later, an I-730 must be filed and they will be considered "following-to-join." In either case, they will be assigned the admission code of RE-3. There is no time period within which these following-to-join derivatives must arrive in the United States; they will lose their derivative classification only if they marry or the principal dies.
If a resettlement agency assists the petitioner in the completion of the I-730, we recommend that the agency enter its designated initials (e.g., USCCB) in the lower right hand corner of the I-730, on the line marked "Volag #."
Admissibility and Waivers
Unlike derivative asylees, the spouse and unmarried children of the principal refugee are subject to the grounds of inadmissibility at the time of applying for derivative status and upon admission into the United States. Some of the grounds are inapplicable (public charge, labor certification, and immigrant documentation requirements), while many others may be waived. Those that may not be waived concern traffickers in controlled substances, spies, persons known to be a terrorist or security threat, those whose admission is viewed as adverse to U.S. foreign policy interests, and participants in Nazi persecution. All other grounds may be waived for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.
These waivers are filed on Form I-602, Application by Refugee for Waiver of Grounds of Inadmissibility. This is different from the Form I-601 waiver used for family-based petitions, and and applies a lower eligibility standard. The I-602 form does not provide much space for describing the basis for the waiver, and it is recommended that the applicant provide an explanation on a separate piece of paper, giving a detailed account of all favorable factors in the applicant’s case. These would include the existence of any LPR or citizen spouse, children, or other relatives; hardship that would be caused those persons if the applicant were denied the waiver; and the applicant’s rehabilitation. Include declarations from relatives, friends, and other persons, such as employers and religious officials, attesting to the applicant’s rehabilitation and good moral character. Include other documentation, such as:
This waiver has been used to allow refugees and their derivatives to enter the United States or adjust status, notwithstanding prior fraud or criminal convictions. There is no statutory requirement to establish extreme hardship to a qualifying family relationship, but rather a balancing of the fraud/criminal activity against the hardship to the family. The granting is discretionary and there is no appeal of a denial of the waiver. In the past, the waiver was broadly defined and liberally applied, although waivers were rarely granted for certain types of criminal offenses, such as murder and narcotics offenses.
A recent decision denying the waiver to a refugee convicted of second degree manslaughter adds a new factor to consider. The Attorney General determined the applicant to be "violent or dangerous," and held that waivers for these crimes should be denied in those cases "except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of [the waiver] would result in exceptional and extremely unusual hardship." In re Jean, 23 I&N Dec. 373 (A.G. 2002). Therefore, if your client is inadmissible based on a criminal conviction, it may be more difficult to obtain this waiver, and nigh-impossible if the client is viewed as "violent or dangerous."
Affidavit of Relationship
Asylees and refugees from some designated nationalities are able to request that certain relatives be processed for refugee status. The designated nationalities and permissible family relationships vary from year to year. This process does not convey derivative status on the family members. Rather, it only allows the relative to be interviewed by a USCIS officer overseas to determine eligibility for refugee status. The relative is still required to show a well-founded fear of persecution based on one of the five protected grounds. The family members must be outside their country of origin. Currently eligible relationships are limited to parents, spouses and unmarried minor children of persons who entered the United States as refugees or asylees. Special provisions exist for family members from the former Soviet Union.
The principle refugee ("anchor") starts the process by completing an Affidavit of Relationship (AOR) with a staff member of an agency authorized by the State Department to sponsor refugee resettlement within the United States. The anchor must have legal, permanent status in the United States, such as refugee, asylee, or LPR. Persons from the former Soviet Union who entered as parolees may also file AORs. The anchor may also be a U.S. citizen, but if over 21 years of age, the general rule is that he or she may not use the AOR to circumvent normal family-based immigrant visa processing on behalf of parents, a spouse, or unmarried children. This general rule, however, is currently waived for those filing AORs; this policy decision is revisited on a yearly basis.
The anchor completes the AOR and includes the names of all those who have a qualifying relationship. But the anchor (principal) is able to use an expansive definition of the term "derivative." For example, if the anchor is a child filing for a parent, the unmarried children of the parent are viewed as permissible derivatives, and thus are entitled to inclusion on the case. In addition, the anchor can include unmarried sons and daughters (over 21 years of age) and other individuals who are part of the principal’s economic family unit and were part of that unit prior to flight.
The anchor signs the AOR before a notary, and the local refugee resettlement agency sends it to their national headquarters, which in turn forwards it to the Refugee Processing Center. If the AOR meets all qualifications for the nationality, the Refugee Processing Center will forward the AOR to the USCIS Refugee Access Verification Unit (RAVU) in Washington DC.
RAVU will conduct a review of the immigration records of each anchor to verify all claimed relationships and status. Only those individuals whose claimed relationships are verified will be allowed to proceed to an interview. Once the RAVU verification is complete, the case is forwarded to the overseas post for processing.
Access to an interview for the U.S. Refugee Program can be seen as a precious commodity to many of the millions of people who are in desperate refugee situations every year. There are confirmed reports of refugees misrepresenting facts and paying bribes to be included on a case for interview. The temptation to resort to this is great when the access to an interview is so greatly restricted. Following the terrorist attacks of September 11, 2001, certain measures were put in place to safeguard the U.S. refugee program, one of these being checking the claimed relationships of applicants under the family reunification categories. A high incidence of misrepresentation was uncovered among certain nationalities. The overall incidence of misrepresentation was estimated at 40 percent, however certain nationalities had an incidence of over 75 percent.
The reason for the misrepresentation may have a humanitarian component, such as attempting to immigrate more distant relatives as sons or daughters, or assisting friends, or claiming an individual as a family member when that person has a bona fide refugee claim but is not being considered for an interview. Nevertheless, misrepresentation of material facts to gain access to the program is not tolerated. Persons who willfully misrepresent facts to gain access to or approval under the U.S. Refugee Resettlement Program are committing fraud. Anyone who falsifies claimed relationships or documents may face civil and/or criminal prosecution, which could result in fines, imprisonment, or revocation of immigration benefits.
The program for relatives remaining in the Former Soviet Union is open only to specific religious minorities. An anchor relative may file an AOR for a spouse, child, sibling, grandparent or grandchild. An anchor with any legal permanent status (including that of a public interest parole) in the United States may file the AOR.
Adjustment of Status
The derivative asylee or refugee is eligible to file for adjustment of status one year after the asylum grant or entry as a refugee, even if he or she is now over 21 years of age. The age-out rules of the CSPA apply at the adjustment stage, as well as at the derivative asylee/refugee admission stage. In other words, the derivative asylee or refugee will not age out as long as he or she satisfies the CSPA’s eligibility requirements as interpreted by the USCIS and State Department. Derivative asylees must remain the spouse and unmarried "child" of the principal asylee at the time of adjustment. In other words, the spouse of the principal asylee must still be married to the principal and the child must be unmarried. In contrast, the spouses and children of refugees do not lose their status nor the ability to adjust status because of the death of, divorce from, or ineligibility of the principal refugee.
Adjustment eligibility requirements for asylees include the following:
Adjustment eligibility requirements for refugees include the following:
The procedures for filing are similar for both refugees and asylees. Each applicant files an I-485, Application for Adjustment of Status, with the Nebraska Service Center. Each applicant 14 years or over also files a G-325A, Biographical Information, and submits to having fingerprints taken at a designated time and place. Refugees are not required to submit a medical exam unless there were medical grounds of inadmissibility applicable at the time of admission. Refugees are required to comply with the fingerprint requirements. Asylees have to submit the full medical exam results and vaccination supplement. The regulations distinguish between refugees, who may be interviewed to determine if they are eligible for adjustment, and asylees, who shall be interviewed, unless they are under 14 years of age. 8 CFR §§ 209.1(c), 209.2(e). However, it is common for the USCIS to waive the personal interview for both categories of applicants. Both refugee and asylees need to submit photos and proof of one-year physical presence in the United States.
Asylees must pay the current I-485 filing fee of $315 ($215 if under 14 years of age); refugees do not have to pay a fee. Fee waivers are available to those who are unable to pay. The agency will consider the following factors and criteria in determining whether the applicant qualifies for the fee waiver: (1) eligibility for a federal means-tested benefit program; (2) household income as reflected on income taxes that is below the poverty level; (3) the applicant is elderly or disabled; and (4) humanitarian or compassionate factors. Documentation that should be submitted to establish the inability to pay the filing fee include income tax returns, W-2 forms or wage statements, proof of disability, rent receipts and other evidence of living arrangements, proof of living expenses, medical and other expenditures. There is no form to apply for the fee waiver. Rather, the applicant submits a declaration requesting the fee waiver and stating the reasons, along with the supporting documentation.
Completing the I-485
Every applicant for adjustment of status must complete and file a separate Form I-485, Application to Register Permanent Resident or Adjust Status. Part 1 of the I-485 asks for biographical information about the refugee or asylee applicant (the "petitioner"): name, address, date and country of birth, social security and "A" numbers, date of last arrival, current immigration status and date of expiry of that status, and I-94 arrival-departure record number. You should ask the client for his or her documents in order to be able to answer these questions. For a refugee, you should be able to obtain the "A" number, date of last arrival, current status and expiry, and I-94 number from the I-94 itself, which the refugee should have been given by the overseas office that approved the status as refugee and that should have been completed by the INS/DHS at the time of the refugee’s admission to the United States. Asylees, on the other hand, may have an I-94 if they were initially admitted to the United States, which would have been in some status other than asylee or refugee. Asylees should also have received either an I-94 or a letter from the DHS or an order from an immigration judge or the BIA showing the date on which they were granted asylum status. Use only social security numbers obtained lawfully by the petitioner from the Social Security Administration.
Part 2 of the I-485 asks you to check the basis on which the applicant is seeking to adjust status. Asylee adjustment applicants should check box d, for asylum or derivative asylum status. There is no box pertaining specifically to refugees; refugee adjustment applicants should check box h, "Other basis of eligibility," and state on the space provided "I was admitted as a refugee under INA Section 207 on [date of admission]."
Part 3, Section A, of Form I-485 requests additional biographical information. Among the questions is one asking for the applicant’s name exactly as it appears on the I-94 arrival-departure record. If the applicant has this form, then you should enter the name as it appears. If the applicant has never been issued this form, then you should include the information: "N/A - no I-94." If you have another document from the INS/DHS showing the applicant’s name, you may want to include the information: "The applicant’s name appears as [full name] on Form [number of form], issued on [date of issuance]." In general, for any question requesting a number or date of issuance of a document that the applicant has never had, you should respond: "N/A - no [form number] issued to me."
This section of the form asks for the petitioner’s mother and father’s first name. Refer to the petitioner’s birth certificate to make sure that the names entered on Form I-485 match those on the birth certificate.
Part 3, Section A, also asks for the applicant’s immigration history: place of last entry, status at entry, visa issuance, and place and date of issuance and number of nonimmigrant visa. If the applicant is a refugee, then the status at entry should be that of refugee, admitted under INA § 207. Refer to the client’s I-94 to obtain this information. For nonimmigrant visa, put "none." For the consulate and date of issuance of the visa, respond "refugee status granted at [name of consulate]" and the date on which refugee status was granted.
For asylee applicants, in responding to the questions concerning entry, ask whether the client was given an I-94 at entry, and also ask to see the applicant’s passport. If the client was admitted, indicate the status and date and place of entry noted on the I-94 form. Also indicate the nonimmigrant visa number, consulate of issuance, and date of visa issuance found on the visa in the applicant’s passport. If the applicant entered under the visa waiver program, he or she will not have a nonimmigrant visa, and these questions should be answered with "no visa issued - entered under visa waiver program." If the applicant was not inspected and admitted at entry, put "EWI" (entry without inspection) in response to the question about status at time of entry. In that case, you will also need to file an I-602 waiver, given that entry without admission is now a separate ground of inadmissibility under INA § 212(a)(6)(A)(i). You may see an applicant with an I-94 showing that he or she was paroled into the country, possibly with a notation of the INA section under which he or she was paroled. If so, include this information exactly as shown on the I-94.
Part 3, Section B asks for the applicant’s present spouse and all sons and daughters. It also asks whether the relative is applying with the applicant. Each family member must satisfy the eligibility requirements for asylee/refugee adjustment of status and file a separate application, so some of the applicant’s family members may or may not be applying at the same time. The relative may have entered after the principal refugee or asylee, for example, as a derivative refugee or asylee, and may not have attained one year’s physical presence in the United States. If the relatives are currently eligible for adjustment and are applying for adjustment, answer "yes" to the question "Applying with you?" If not, answer "no" and explain why not.
Question C in Part 3 asks for the applicant’s past and present membership in or affiliation with any group or organization. Make sure you review the client’s asylum application and any supporting attachments to see what organizations were listed there. It is important that the asylum and adjustment applications be consistent in all aspects (e.g., membership in groups, manner of entry, marriages, arrests). Emphasize to the client that it is important to be thorough in his or her responses. Membership in certain organizations, however, may render an applicant inadmissible. Membership in a terrorist organization is a ground of inadmissibility that is not waivable for refugee and asylee adjustment applicants. Membership in a communist or totalitarian organization is also a ground of inadmissibility, but there are several exceptions and a waiver that might apply to the adjustment.
At page 3 of the I-485 the applicant is asked to respond "yes" or "no" to various questions. These questions pertain to the inadmissibility grounds of INA § 212. As noted above, only some of these inadmissibility grounds apply to the applicant, and most others may be waived in the Attorney General’s discretion. Emphasize to the client that he or she must answer these questions carefully. If it appears that the applicant may be inadmissible under one of the inadmissibility grounds that apply to asylee and refugee adjustment applicants, then you should also think about gathering and preparing documents to support an application for a waiver. For example, many asylees had to commit fraud or misrepresentation to gain entry into the United States, so be sure to inquire into this area and include any necessary waiver.
Page 4 of the form contains a place for the applicant’s signature and for the signature of the person preparing the form. Anyone who assists in preparing the form, even if no G-28, Notice of Entry of Attorney or Representative, is filed or if someone else files a G-28, should also sign the petition at the bottom of the form. If you are an attorney or accredited representative, you should sign the form. If you are not, but work for an agency that has attorneys or accredited representatives on staff, one of them should sign the form after reviewing it.
Prior to the CSPA, the former INS had developed a special procedure allowing an asylee’s child who had aged out to obtain equivalent benefits. In the case of a derivative who had aged out, i.e., turned 21 years of age, the adjustment was permitted under the legal doctrine of nunc pro tunc, which in Latin means "now for then." This was accomplished by the derivative filing a separate asylum application with the local asylum office and undergoing an in-person interview. The asylum office was under instructions to grant it, regardless of the merits of the application (assuming no bars to asylum apply), and backdate the grant to the date the principal was granted asylum, or the date of admission as a derivative, or the date the I-730 was approved, depending on the case. Children covered by the CSPA’s age-out protections will no longer be required to undergo this special nunc pro tunc procedure, although it will still be needed for derivatives who marry while in derivative status before they can adjust. The new grant of asylum is backdated to the date they were originally granted derivative status.
Remember to keep in mind other forms of relief, if necessary, such as employment-based and family-based immigration.
Eligibility for naturalization
Asylees who are approved have their adjustment backdated to one year prior to the date of approval, and thus are eligible to file for naturalization in four years. Refugees have their approval backdated to their date of admission as a refugee, and thus may file for naturalization five years after that date.
THE EFFECT OF THE CSPA ON ASYLEE/REFUGEE DERIVATIVES*
If the following events occur, does the derivative child continue to be classified as a child on or after August 6, 2002?
*Table prepared by Department of Homeland Security, USCIS.
Anastasia Brown is the Director of Refugee Programs, Migration and Refugee Services, United States Conference of Catholic Bishops.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.