(a) Eligibility .

(1) Refugees . [Revised 06-21-2006]

Pursuant to section 207(a) of the Act, a person who has been physically present in the U.S. as a refugee for an aggregate period of one year is required to apply for permanent residence. Because the refugee's quota number was allocated at the time of his or her approval for admission to the U.S. as a refugee, there are no numerical restrictions on the number of persons who may adjust from refugee status to LPR status each year. Technically, a refugee does not "adjust status," instead he or she returns to the position of being an ap plicant for inspection and admission to the U.S. as an immigrant, but the process is almost universally referred to as a "refugee adjustment."

(2) Asylees .

A person who has been physically present in the U.S. as an asylee for an aggregate period of at least one year may apply for adjustment of status to that of LPR.

(3) Others Allowed to Apply for Adjustment Under Section 209 of the Act by Statute or Regulation .

Historically, other persons have been granted status which was similar to the current refugee and asylee categories. These persons are also eligible to apply for adjustment of status under section 209 of the Act once certain conditions have been met. These persons include:

(A) Pre-April 1, 1980 Conditional Entrants .

Prior to April 1, 1980, section 203(a)(7) of the Act allowed persons from communist or communist-dominated countries and persons from countries in the general area of the Middle East to be admitted as “conditional entrants” under the seventh preference category. The conditional entrant cases corresponded to today’s refugee cases. Subsections (g) and (h) of section 203 of the Act allowed conditional entrants to become permanent residents after a specified period (initially two years, later reduced to one yea r) in the U.S.

The conditional entrant provisions were generally repealed by the Refugee Act of 1980, except that section 204(c)(1) of Refugee Act of 1980 provided that:

The repeal of subsections (g) and (h) of section 203 of the Immigration and Nationality Act, made by section 203(c)(8) of this title, shall not apply with respect to any individual who before April 1, 1980, was granted a conditional entry under section 203(a)(7) of the Immigration and Nationality Act (and under section 202(e)(7) of such Act, if applicable), as in effect immediately before such date, and it shall not apply to any alien paroled into the U.S. before April 1, 1980, who is eligible for the benef its of section 5 of Public Law 95-412.

Accordingly, any conditional entrant case encountered today who is seeking LPR status should be treated in the same fashion as a refugee seeking permanent residence under section 209(a) of the Act, except that the correct adjustment code is “P7-5."

(B) Persons Paroled as Refugees Prior to April 1, 1980 .

Section 5 of Public Law 95-412, as amended, states that:

Notwithstanding any other provision of law, any refugee, not otherwise eligible for retroactive adjustment of status, who was or is paroled into the U.S. by the Attorney General pursuant to section 212(d)(5) of the Immigration and Nationality Act before April 1, 1980, shall have his status adjusted pursuant to the provisions of section 203(g) and (h) of the Act.

In accordance with this provision, and the last portion of section 204(c)(1) of the Refugee Act of 1980 (cited above), a person paroled into the U.S. as a refugee may have his or her status adjusted to lawful permanent resident under section 209(a) of the Act. See paragraph (A) for guidance on processing the adjustment case.

(C) Persons Paroled as Refugees Between April 1, 1980 and May 18, 1980 .

Some persons continued to be paroled into the U.S. for a few weeks after April 1, 1980. In accordance with 8 CFR 209.1(a)(2) , they are to be treated the same as persons admitted under the old seventh preference (conditional entrant) category. See paragraph (A) for guidance on processing their adjustment cases.

Note

Regarding Persons Admitted as Conditional Entrants after April 1, 1980 or Paroled as Refugees after May 18, 1980: if INS admitted any conditional entrants after April 1, 1980 or paroled any persons as refugees after May 18, 1980, it did so in error. The adjustment of such persons is not covered by either statute or regulation. Should you encounter any such persons, contact the Refugee Program at the Office of International Affairs for further guidance.

(b) Filing Requirements .

(1) Refugees and Other Persons Allowed to Apply For Adjustment Under Section 209(a) of the Act by Statute or Regulation .

A qualifying refugee (or other person described in paragraphs (a)(3)(A) through (a)(3)(C) may apply for adjustment by filing Form I-485 (without fee) with the Nebraska Service Center. See 8 CFR 209.1 .

(2) Asylees .

A qualifying Asylee. [Revised 06-21-2006] A qualifying asylee may apply for adjustment by filing Form I-485 (with fee) with the Nebraska Service Center.

(c) Medical Examination Reports .

(1) Refugees and Others Covered Under Section 209(a) .

Since a refugee normally receives a medical examination before traveling to the U.S., he or she is not required to submit a complete medical examination report as part of the adjustment application, unless the record shows that he or she did not receive a medical examination prior to entry or there were medical grounds of inadmissibility at the time of entry. [One notable exception relates to an alien who received derivative refugee status through the I-730 process while in the U.S. under some other status (e.g., nonimmigrant or entry without inspection). Because such persons typically have their status changed to that of a refugee without receiving a medical examination, the report of medical examination must be submitted as part of this process. Contrast this with the I-730 beneficiary who is outside the U.S. and must submit a medical report to the consulate before being given travel authorization to come to the U.S.] See 8 CFR 209.1(c) and Chapter 40.1 of this field manual .

However, because many refugees arrived before the 1996 amendments to the Act which require that the alien be vaccinated against a number of diseases, any refugee adjustment applicant who did not present evidence of vaccination as part of the refugee approval and admission process must do so as part of the adjustment process.

Furthermore, if the refugee obtained a waiver of inadmissibility on medical grounds which required follow-up action after the refugee’s arrival in the U.S., it is imperative that before granting adjustment of status you verify that the refugee complied with such follow-up requirements. For example, if a refugee suffering from tuberculosis received a waiver which required that he or she receive treatment through his or her county health department, he or she should be required to submit a letter from that he alth department verifying that he or she has complied (or is complying) with such requirements.

(2) Asylees .

With limited exceptions, all asylee adjustment applicants must obtain full medical examinations and vaccination certificates as part of the adjustment process (see 8 CFR 209.2(d) and Chapter 23.3 of this field manual ). Subject to your verification that a full report, with vaccination requirements, is contained in the alien’s file, the exceptions which are not required to submit medical examination reports are:

·     Certain Iraqi nationals who were evacuated to the U.S. through Guam and were granted asylum received medical examinations as part of that process.

·     Persons who received derivative asylum status through the I-730 process and received a medical examination before being issued travel authorization by a consular officer. (Note: this does not apply to persons whose status was changed to derivative asylee based on an I-730 petition approved while the beneficiary was in the U.S.; such persons must submit medical examination reports as part of the adjustment process.)

(d) Adjudication .

(1) General .

With few exceptions (such as the need for a quota number and a medical report for most asylees), the adjudication of Form I-485 for refugees and asylees is quite similar. The issues are whether the alien is still entitled to refugee or asylee classification and whether the alien is admissible to the U.S. If the answer to both these question is yes, the application may be approved. If there is reason to believe that the alien is no longer (or never was) entitled to refugee or asylee classification, and if th e alien does not fall within the provisions discussed in paragraph (2), consult with the Office of International Affairs before proceeding. If it appears that the alien is inadmissible to the U.S., refer to paragraph (3).

(2) Treatment of Certain Persons Who Are No Longer Entitled to Classification as Asylees .

Under 8 CFR 209.2(a)(2) persons who were granted asylum prior to November 29, 1990, may have their status adjusted to LPR under section 209 of the Act even though they no longer have a bonafide fear of persecution. They need only apply for adjustment and establish that they have not been resettled in another country and are not inadmissible to the U.S. (see paragraph (3)). There is no need to consult with the Office of International Affairs before approving such cases.

(3) Exemption from and Waiver of Inadmissibility Grounds .

Pursuant to section 209(c ) of the Act, sections 212(a)(4), (5) and (7)(A) of the Act do not apply to asylee and refugee adjustment applicants. Furthermore, with the exception of sections 212(a)(2)(C) , 212(a)(3)(A) , 212(a)(3)(B) , 212(a)(3)(C) , and 212(a)(3)(E) of the Act, those grounds which do apply may be waived for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. (Normally, waiver applications for refugees are handled overseas before the person is approved for refugee classification. However, if a ground of inadmissibility arose after the alien’s approval for refugee classification, or was not known to the officer who made such approval, the waiver may be sought and adjudicated as part of the refugee adjustment pr ocess.) A refugee or asylee uses Form I-602 to apply for a waiver of inadmissibility.

In adjudicating the waiver application, you should apply discretion as you would in any other case, bearing in mind the fact that the alien has established a well-founded fear of persecution is, in and of itself, an extremely strong positive discretionary factor. Accordingly, unless there are even stronger negative factors, the waiver application should be approved. Since the approval of the adjustment application will indicate the approval of the waiver application, there is no need for a separate approval notice. Simply stamp the Form I-602 approved, check the block labeled “Waiver of Grounds of Inadmissibility is Granted,” and make the appropriate endorsements in the space labeled “Basis For Favorable Action.”

If the alien is statutorily ineligible for a waiver (i.e., he or she is inadmissible under section 212(a)(2)(C) , 212(a)(3)(A) , 212(a)(3)(B) , 212(a)(3)(C) or 212(a)(3)(E) of the Act) or if there are sufficient negative factors to warrant denial of the waiver application, check the block labeled “Waiver of Grounds of Inadmissibility is Denied,” and write “See Form I-291" in the space labeled “Reasons.” The denial of the waiver should be fully discussed in the denial of the adjustment application. While there is no appeal from the denial of the I-602 waiver application, the immigration judge may consider the waiver application de novo when he or she considers the renewed adjustment application during removal proceedings.

(4) Effective Date of Residence .

When a refugee or an asylee is granted adjustment of status, the effective date of his or her residence is not the date of approval. The effective date of residence (which establishes such things as the date of eligibility to apply for naturalization) is determined by the roll-back provisions of the law:

·     When a refugee adjusts under section 209(a) of the Act, he or she is entitled to LPR status as of the date on which he or she was originally admitted as a refugee. See 8 CFR 209.1(e) .

·     When an asylee adjusts status under section 209(b) of the Act, he or she is entitled only to a rollback of one year from the date on which the adjustment application is approved. See 8 CFR 209.2(f) .

(5) Denial .

If the refugee or asylee’s adjustment application cannot be approved, it should be denied on Form I-291 and the alien should be placed in removal proceedings under section 240 of the Act. The denial order should set forth all the reasons for the denial in clear language which can be understood by the applicant. There is no appeal from the denial of the application, but the alien may renew the application for adjustment in his or her removal proceedings before the Immigration Court. See 8 CFR 209.1(e) and 8 CFR 209.2(f) .