53.5 Special Considerations.

(a) Expedited Approval and Issuance .

Applications for RTDs can only be filed and adjudicated at the Nebraska Service Center, except as provided in sections 53.5(a) and (b) of this field manual. If an alien having an emergency situation which necessitates immediate travel presents a completed I-131 application at a USCIS office other than the Nebraska Service Center, the director or officer in charge of that office may choose to contact the Nebraska Service Center for instructions on how to accept the filing fee, fax a copy of the application to the Nebraska Service Center, and forward the application (including the requisite photographs and a copy of the fee receipt) to the Nebraska Service Center for adjudication, production, and overseas forwarding of the RTD.

(b) Procedures and Principles for Overseas Adjudication of a Refugee Travel Document Application .

(1) Background .

Regulatory provisions allowing for the overseas adjudication of an application for a refugee travel document (RTD) were added as an indirect result of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA amended the Act by adding a provision at section 208(c)(1)(C) whereby USCIS may allow an alien granted asylum to travel abroad with the prior consent of the Attorney General. (Prior to IIRIRA, the authority to issue an RTD rested only on federal regulations.) Since the United States does not exercise departure control, the new statutory provision was taken to mean that the alien may be allowed to return from travel abroad provided the alien had been granted the Service’s prior consent.

The Service also recognized that there had been a long-standing problem relating to refugees and asylees who departed the United States without first applying for an RTD. Such departures were often due to a family emergency which necessitated immediate travel or to the alien’s ignorance of the regulatory requirement for applying in advance. Because the Service was without the ability to accept and adjudicate RTD applications once the alien had departed the U.S., the alien was stranded abroad. This situation created significant difficulties for the alien so stranded, for the country in which he or she was stranded, and for the Service.

Accordingly, it was decided that in implementing the new statutory provision the Service would also address the stranded refugee problem by allowing the alien to apply for an RTD from abroad. It is important to remember that this new procedure was not intended as the routine method of obtaining the document; rather, it was intended only to address the problem of a bona-fide refugee or asylee who travels overseas in an emergency (e.g., gravely ill family member) or who legitimately did not understand the req uirement.

Furthermore, it should be noted that the provision applies only to RTDs and not to re-entry permits.

(2) Procedures .

An alien seeking an RTD through a DHS office outside the U.S. or at a port of entry must file the application (Form I-131) IN PERSON with that DHS overseas office (or if there is no DHS office in the country where the alien is located, at the nearest U.S. consulate) or port of entry within one year of the date on which the alien departed the U.S. The applicant may not submit the application by mail, through a legal representative or in any other fashion except in person. The applicant must also submit photo graphs (in accordance with the instructions on the form), which a USCIS officer or consular officer must verify as a true likeness of the alien at time of submission. The application must be accompanied by the required fee in accordance with 8 CFR 103.7 . It is most important that the receiving DHS office, consular post, or port of entry have the complete address and telephone number outside the United States where the alien may be contacted once the application has been adjudicated. Once the application has been filed, the alien must wait overseas or in a contiguous territory until the application has been approved and he or she has received either the document or a boarding letter based on the approved application (see paragraph (b)(6)). If the applicati on has been filed at a consular post, the application must be sent to the overseas DHS office having jurisdiction for adjudication. The overseas DHS office or consular post CANNOT issue a boarding letter to allow the alien to return to the U.S. in order to apply for an RTD at a port of entry or elsewhere.

The overseas DHS office or port of entry must request the alien’s A-file, or have the pertinent portions thereof transmitted from the relevant USCIS Files Control Office by photophone or other method guaranteed to provide a clear and distinct photograph. Transmission by fax will not normally be sufficient due to the inherent lack of clarity of fax transmissions. Once the overseas office or port of entry has received the file, or an appropriate electronic transmission thereof, that office or POE may adjudica te the application. If the overseas DHS office has not received the alien’s file (or transmitted portions thereof) within 90 days of the request, the office may adjudicate the application without the file only if the office is fully satisfied as to the identity of the applicant and the bona fides of the application. In addition to the provisions of 8 CFR 223.2(b)(2)(ii) , all other standards for adjudication apply, exactly as if the application had been submitted to the Nebraska Service Center prior to departure.

(3) Validity .

The approval must indicate the date of the alien’s most recent departure from the U.S. and it must indicate the expiration date of the RTD which is to be no more than two years after the alien’s departure .

(4) Fraud potential .

The potential for fraud in this type of application is quite high. Detection and deterrence of fraud MUST be the primary concern of the overseas office or port of entry. Any and all doubts MUST be resolved prior to approval of the application. Remember that regardless of his or her reason, the alien erred by not submitting an application to the Nebraska Service Center prior to departure. The overseas office or port of entry should not take any shortcuts in adjudicating the application.

(5) Notification of Decision .

On approving the application, the overseas DHS office or port of entry should advise the alien that the proper procedure to follow should he or she need an RTD in the future is to apply prior to departure from U.S.

(6) Actions .

(A) Approval .

Once the alien’s identity and status as a refugee have been verified, the overseas office or port of entry may approve the application. As indicated above, the approval must indicate the one year anniversary date of the alien’s departure so the Nebraska Service Center will know when the RTD is to expire. Furthermore, the overseas office should indicate on the approved application whether a boarding letter has been issued to the alien to allow his or her return prior to production and delivery of the RTD.

(B) Production .

The overseas office should forward the approved application to the Nebraska Service Center for issuance. That Service Center must issue the RTD document to expire no later than one year from the date of the alien’s departure from the U.S. However, if because of delays in the adjudication process, the Nebraska Service Center receives the approved application too late to issue it before the one year expires, the service center may so annotate the application and notify the alien (who presumably re-entered the United States on a boarding letter issued by the overseas DHS office) that due to the passage of time the RTD cannot be issued. Such notification is without prejudice to the alien’s applying for, and being granted, a new RTD based on a new application.

(C) Delivery of Document Prior to Alien’s Return to the United States .

If the alien is to remain overseas long enough, the refugee travel document should be delivered to him or her through a DHS office or American consulate using the G-94 procedure.

(D) Alien’s Return to the United States Prior to Delivery of Document .

If the alien cannot wait overseas for issuance of the document, the overseas DHS office may, once the application has been approved and forwarded to the Nebraska Service Center for production, issue a boarding letter to allow the alien to return to the U.S. and be admitted as a returning refugee . Once the Service Center has produced the RTD, it would then mail the document to the alien’s home address in the U.S., if time allows (see above). When issuing a boarding letter under these circumstances, the overseas office should take all possible precautions to prevent the use of the boarding letter by an impostor.

If the alien is an applicant for admission at a port of entry, he or she may be admitted to the United States as a returning refugee. The RTD will then be mailed to the alien’s home in the United States.

(7) Denial and Appeal .

Denial actions are the same as with other RTDs (see above), with the Administrative Appeals Unit having jurisdiction over any such appeal.