21.10 Refugee / Asylee Relative Petitions.

(a) Background .

Section 207(c)(2) of the Act entitles a qualifying spouse or child of a refugee to be admitted as a refugee if accompanying or following to join the refugee. Section 208(b)(3) of the Act entitles a qualifying spouse or child of an asylee to be granted asylum status if accompanying or following to join the asylee.

(b) Eligibility Requirements .

A Form I-730 (“Refugee/Asylee Relative Petition”) may be filed on behalf of either a spouse or a child (i.e., a person meeting the definition contained in paragraphs (A) through (E) of section 101(b)(1) of the Act) by an alien who has been admitted to the United States as a refugee or has been granted asylee status in the United States. A separate Form I-730 must be filed for each beneficiary.

(c) Form and Filing Issues .

Form I-730 must be filed with the Nebraska Service Center.

By regulation, the Form I-730 must be filed within two years of the date on which the refugee petitioner arrived in the United States or was granted asylum status, with the following exceptions:

· If the alien acquired his or her status on or prior to February 27, 1998, the petition could have been filed at any time prior to February 28, 2000.

· If USCIS determines that valid humanitarian reasons exist for extending the filing deadline, it may do so. (There is no set limit on the length of extension which may be granted.)

Note

If more than 2 years have passed since the refugee arrived in the U.S. or asylum status was granted, and neither of the exceptions applies, the petitioner’s only option is to wait until he or she becomes a lawful permanent resident and then file a Form I-130, Petition for Alien Relative.

(d) General Adjudication Issues .

· Petitioner’s Status - A petitioner must be either a refugee or an asylee in the U.S. when the Form I-730 is filed. If, pursuant to section 209(a) or section 209(b) of the Act, he or she adjusts status to that of lawful permanent resident before the petition is approved, the petition may still be approved and the beneficiary may receive derivative status (provided all other requirements are met).

· Age of (Child) Beneficiary - For asylum and refugee applications pending on or filed after August 6, 2002, whether or not a son or daughter may continue to be classified as a child is based on the age of the derivative at the time the refugee or asylee application is filed. As long as the child was under 21 on the date of filing the asylum or refugee application, he or she will continue to be classified as a child for purposes of adjudicating the refugee or asylum application, This provision continues to protect the beneficiary afte r the approval of the Form I-730, through the admission process, and (in the case of a dependent asylee) the section 209(b) adjustment process. (Section 209(a), under which a refugee or derivative refugee “adjusts” to permanent resident status, does not require that a derivative refugee have continued to qualify as the child of a refugee, so aging out is not an issue.) See section 207(c)(2)(B) and section 208(b)(3)(B) of the Act. These special provisions do not apply to beneficiaries who had aged out prior to the filing of an I-730 petition on their behalf or whose I-730 petition had been denied prior to August 6, 2002.

· Marital Status of Beneficiary - A child must be unmarried in order to qualify as a beneficiary of an I-730 petition.

· Time at Which Relationship Was Created - Generally, in order to qualify as a spouse or child of a refugee or asylee for Form I-730 purposes, the relationship must have existed at the time the petitioner/parent acquired refugee or asylee status (except for in utero children, see below). Relationships created after that date do not qualify for Form I-730 petition purposes , although the refugee or asylee may be eligible to file a second preference petition for the same individual once that refugee or asylee adjusts to LPR status.

Unlike other classifications, the regulations at 8 CFR 207.7 and 8 CFR 208.21 governing following to join dependents of refugees and asylees allow a child to qualify even if the child was not born until after the petitioner acquired refugee or asylee status, provided such child was in utero (i.e., had been conceived) prior to the date on which the petitioner acquired such status. Accordingly, an I-730 petition may be approved for a child who was born within approximately 9 months after the date on which the petitioner acquired status, so long as the beneficiary falls within one of the definitions of child set forth in section 101(b)(1) of the Act.

Note

It is possible for child to qualify for such benefit even if the petitioner could not possibly be the biological father. For example, if the petitioner had been in the U.S. continuously since prior to the earliest possible date of conception, but was married to the mother of the child, such child still qualifies as his under the law. Accordingly, you should not get involved in needless argument over whether or not the beneficiary is the petitioner’s biological child if he or she otherwise qualifies.

· Relationship Between the Petitioner and the Beneficiary - With the exception of the issues covered in the preceding bullets, the same relationship issues that pertain to an I-130 petition for a spouse or child pertain to an I-730 petition for the same relationship. Accordingly, in adjudicating an I-730 petition, the adjudicator should be aware of, and follow, the relating guidance set forth in Chapter 21.2, Chapter 21.3 and Chapter 21.4 of this field manual.

(e) Final Decision .

(1) Approval .

If no adverse information is developed in a case at a USCIS office, the adjudicating officer shall approve the petition and either:

· Send the approved Form I-730 to the National Visa Center, which will in turn forward it to the appropriate overseas post. (See Chapter 16.2(d) and Chapter 16.3(b) of the Inspector’s Field Manual for information regarding admission of derivative refugees and asylees at ports-of-entry); or

· Retain the approved petition in the beneficiary’s file (i.e., A-file is one is pre- existing or receipt/petition file if no A-file exists) and invite him or her to apply for derivative refugee/asylee status if he or she is in the U.S.

Note

Previously, a Visas Ninety-Two (in the case of a derivative asylee) or Visas Ninety-Three (in the case of a derivative refugee) cable would have been sent to the appropriate U.S. embassy or consulate. Although the practice of sending a cable has been discontinued, I-730 petition approvals are still known as “Visas 92" and “Visas 93" cases.

(2) Denial .

If the petitioner fails to establish eligibility for the benefit sought, the adjudicating officer shall deny the petition and notify the petitioner of the reasons therefor by letter. There is no appeal from the denial of an I-730 petition.

(3) Reopening Proceedings Based on Adverse Information .

If adverse information is developed subsequent to the approval of the petition, the petition will be returned to the Nebraska Service Center with a memorandum (and supporting evidence) setting forth the arguments for revocation. When the Nebraska Service Center receives the petition with the adverse information, that office shall notify the petitioner of the derogatory information and of the Bureau’s intent to reopen the decision to approve the petition. The petitioner is to be given the choice of withdrawi ng the petition or having a determination of eligibility made in reopened proceedings. There is no appeal from the revocation of a Form I-730. After the new decision has been made, the Nebraska Service Center will notify the immigration or consular officer who developed the adverse information by memorandum of the final action.

If the reopened petition is not withdrawn or denied, the petition and all attachments must be forwarded to the consulate or embassy where the beneficiary is being processed for Form I-730 benefits. If the adverse information was developed at an overseas DHS office or a consular post, a memorandum explaining the reasons for not reopening and denying the petition must be attached to the re-affirmed petition.

(e) Precedent Decisions .

To date, there have been no precedent decisions relating to Refugee/Asylee Relative Petitions.