This is the second of two articles. In the first article we described the procedures for asylees to immigrate and adjust their spouses and children as derivatives. This article will describe refugee derivative processing and adjustment of status for asylees and refugees.
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:
- Marriage and birth certificates evidencing the applicant's family relationships in the United States
- Evidence of the applicant's family members" relationships and ties to the United States
- Record of steady employment
- Evidence of religious worship attendance, and
- Evidence of other factors that would establish that the applicant is not likely to have similar problems, that the applicant will be a good member of the U.S. society, and/or that it would cause great hardship to the applicant and/or to his or her U.S. citizen or LPR/refugee/asylee spouse and children if he or she were denied derivative status or adjustment of status.
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. 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:
- Physical presence in the U.S. for at least one year after asylum grant
- Status as a refugee or the spouse or child of a refugee. An asylee must establish that he or she meets the definition of a refugee, which means that the asylee still has a well-founded fear of persecution in his or her country on the basis of race, religion, political opinion, nationality, or membership in a particular social group. For example, if the conditions in the asylee's country have changed so that the asylee could now live there safely, he or she may be ineligible to adjust status under Section 209 because he or she no longer qualifies as a refugee.
- Has not been firmly resettled in any foreign country
- Admissible under INA " 212, except for the grounds that are inapplicable
- Has a refugee number available under INA " 207"a). Only 10,000 asylees are able to adjust every year. Given the current backlog, adjustment applicants who are filing now can expect at least a twelve-year wait before adjusting status.
- Physical presence in the United States for at least one year after admission as a refugee
- Status as a refugee or the spouse or child of a refugee (refugee status has not been formally terminated)
- Has not already acquired LPR status
- Admissible under INA " 212, except for the grounds that are inapplicable.
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?
No. Case is no longer pending.
Prepared by Department of Homeland Security, UCSIS.