Chapter 2: Eligibility Requirements

By applying for adjustment of status​, refugees are considered to be applying for inspection and admission to the ​U​nited ​S​tates​ as an immigrant. ​A refugee may adjust status to a lawful permanent resident if the refugee meets ​the following four requirements:​

A​dmitted as a refugee under ​INA ​207​;​

P​hysically present in the U​nited ​S​tates​ as a refugee​ for at least one year;​

R​efugee status ​has not been ​terminated; and​

P​ermanent resident status​has not already been acquired ​in the ​U​nited ​S​tates​.​

Applicants who fail to meet any of the​se​ requirements are statutorily ineligible for adjustment of status as a refugee.​

A. Admitted as a Refugee ​under ​INA 207​

Only ​applicant​s ​classified as refugees are eligible to adjust status as a refugee.​Foreign nationals ​are generally classified as refugees through an approved Registration for Classification as Refugee​ (Form I-590)​, or an approved Asylee/Refugee Relative Petition​ (​Form​I-730​)​ filed by a principal refugee.​

Refugees who are admitted to the ​United States​ through an approved ​Form ​I-590 are granted refugee status on the date they are admitted.​Derivative refugees already in the ​United States​ when their ​relative petition (​Form ​I-730​)​ is approved are granted refugee status on the date the ​relative petition​ is approved. ​Derivative refugees outside the U​nited ​S​tates​ when their ​relative petition​ is approved are granted refugee status on the date they are admitted to the U​nited ​S​tates​.​

Immigrants ​O​ften ​M​istaken as ​R​efugees​:​

Several classifications of ​immigrants ​are ​often ​mistaken for refugees.​ Many of these ​foreign nationals​apply for adjustment of status as a refugee because they ​are not aware of​ the difference between their status and refugee status and may genu​inely think they are refugees. ​These applicants are not eligible for adju​stment of status ​under the ​refugee​ adjustment of status provisions​. ​The most commonly encountered non-refugees are:​

Asylees​

Asylum may be granted to ​persons​who are already in the United States and mee​t the definition of a refugee. ​Asylees are similar to refugees in many ways and in some cases ​may be​ confused with refugees. ​However, a​sylees gain status through either an Application for Asylum ​and f​or Withholding of Removal​ (​Form I-589​)​ approved by an Asylum Office, Immigration Judge or the Board of Immigration Appeals, or ​by obtaining a ​visa ​through ​an​ approved​relative petition​ for​ derivative asylees​ not included on the original ​asylum application​.​Asylees ​also ​may ​apply for adjustment of status under ​INA ​209​,​ but ​through ​a ​process​ separate from the refugee adjustment process​.​ [1] See Part M, Asylee Adjustment [7 USCIS-PM M] for details on adjustment of status for asylees.

Lautenberg ​P​arolees​

As part of a program under the Lautenberg Amendment first introduced in 1990, certain ​foreign nationals​from the former Soviet Union found to be ineligible for ​refugee status ​and ​whose applications ​are denied ​can be​ offered parole into the ​United States.​ These ​persons​include, but are not necessarily limited to​:​ Jews, Evangelical Christians, and Ukrainian Christians of the Orthodox and Roman Catholic denominations.​Prior to mid-1994, Lautenberg parolees also included certain Vietnamese, Cambodians, and Laotians.​Lautenberg parolees will usually have a denied ​Form ​I-590 and a travel letter​,​ or ​an ​Arrival/Departure Record​ (Form I-94)​ showing that they were paroled into the ​United States.​Lautenberg parolees may adjust status under section 599E of​Pub.​L. 101-167. ​

Cuban ​E​ntrants​

Since 1959, thousand​s of​ Cuban​ national​s have been paroled or admitted into the ​United States​,​ many for humanitaria​n reasons but not as refugees. ​Although Cubans from the ​port​ of ​Mariel​, ​Cuba​, entered the ​United States​ shortly after the enactment of the Refugee Act of 1980 and may have documentation that ​seems to indicate ​refugee status, they do not adjust ​status as refugees​. ​Such ​person​s ​who have been physically present in the ​United States​for one year ​can adjust status under the Cuban Adjustment Act of 1966.​

Indochinese ​P​arolees​

Throughout the 1980s and 1990s, thousands of citizens of Vietnam, Cambodia, and Laos ​were​ paroled into the United States under ​the Orderly Departure Program. ​Those who were paroled into the ​United States​ before October 1, 1997 and who were in the ​United States​ on that day may adjust status under section 586 of P​ub.​L​.​ 106-429​. ​

Humanitarian ​P​arolee​s​

Person​s ​throughout the world who are facing ​a ​humanitarian crisis may be paroled ​i​nto the ​United States.​ Sometimes these are extended family members of refugees or asylees who cannot be approved on a​ relative petition​. ​They may be similar to Lautenberg parolees in that they do​n​o​t qualify for refugee status but are​ facing some type of hardship. ​These ​foreign national​s ​generally have no means to adjust status bas​ed on their parole. ​

Illegal ​E​ntrants​

Some illegal entrants may consider themselves to be refugees ​because​ they are ​fleeing someone or some place. ​They may have applied for asylum status and been denied​, ​entered the ​United States​ without inspection or ​overstayed their nonimmigrant visa​.​

Iraqi and Afghan Translators​

While some Iraqi and Afghan nationals are admitted as refugees, others may be admitted into the ​United States​ based on their service to the U​nited​ S​tates​ Armed Forces as a translator or​ interpreter (SI-1​ classification​).​ Thes​e ​foreign nationals ​are not refugees.​ The ​holder of a ​SI-1 ​classification ​will​have an approved ​P​etition ​for ​Amerasian​, Widow(​er​), Or Special Immigrant ​(​Form I-360​)​ in order to apply for adjustment of status.​Iraqi nationals and citizens with an ​approved Form​I-360 do not adjust status as a refugee but rather as employment-based 4​th​ preference special immigrants. ​

Iraqi Employees Who Worked On or Behalf of the U.S. Government​

Section 1244 of the National Defense Authorization Act for Fiscal Year 2008​ (Pub. L. 110-181)​ authorizes special immigrant status (SQ-1​ classification​) for Iraqi nationals who worked ​for or ​on behalf of the U​.S.​g​overnment in Iraq on or after March 20, 2003​ to ​be admitted to the ​United States​ or adjust to immigrant status.​ These​foreign nationals ​are not refugees. ​The ​holder of a SQ-1 classification ​must have an approved ​Form ​I-360​ in order to a​pply for adjustment of status. ​Iraqi nationals and citizens with an ​approved Form ​I-360 do not adjust status as a refugee but rather as employment-based 4​th​ preference special immigrants. ​

Afghan Allies​

The Afghan Allies Protection Act of 2009 authorizes special immigrant status (SQ-1​ classification​) for Afghan nationals who worked for or on behalf of the U.S. government to be admitted to the ​United States​ or adjust to immigrant status.​ These​foreign nationals ​are not refugees. ​The ​holder of the SQ-1 classification​must have an approved ​Form ​I-360​ in order to ap​ply for adjustment of status. ​Iraqi nationals and citizens with an ​approved Form ​I-360 do not adjust status as a refugee but rather as employment-based 4​th​ preference special immigrants. ​

Aliens ​E​rroneously ​A​dmitted ​to the United States ​as ​R​efugees​

Sometimes ​a​ foreign national​ may be ​erroneously ​admitted ​as​ a refugee as indicated on their ​admission document (​Form I-94​)​. This is most common with derivative asylees, humanitarian parolees, and​ sometimes Lautenberg parolees.​ The fact that a person was admitted erroneously as a refugee does not make that person eligible to adjust status​ under ​the refugee adjustment​ of status​ provisions​.​ [2] See INA 209(a).As is the case in all adjustment of status applications, an officer ​must determine if the person was indeed admitted under the proper classification prior to making a decision on the ​adjustment application​.​ [3] See Matter of Khan, 14 I&N Dec. 122 (BIA 1972). This applies in general to any immigrant who was admitted under the wrong status or was ineligible for admission under that status.

B. Physical​Presen​ce​ in the United States for at Least One Year​

Refugees are required to have one year of physical presence in the U​nited ​S​tates​at time of filing ​the application in order ​to​ be eligible to adjust status. ​For applicants who gained derivative refugee status through an approved ​relative petition​ and ​who ​were in the ​United States​ when the ​petition​ was approved, the one year ​period ​begin​s​on​ the date​ the ​relative petition​ was approved. ​

Because the requirement is one year of physical presence and not just one year from the date of admission as a refugee, only time spent in the ​United States​ count​s​ toward this requirement. ​Applicants who travel outside the ​United States​within their first year of residence as a refugee will not meet this requirement until the ​cumulative ​amount of time spent in the ​United States​ is at least​ one year.​

C. Refugee Status Has Not Been Terminated​

A​n a​pplicant​who​se​ refugee status ​has been ​terminated ​is​not eligible to adjust status​.​ Evidence of termination of status in the ​applicant’s A-​file will generally include a notice of termination of status, a Notice To A​ppear, and EOIR court records. ​Other evidence may include a notice of intent to terminate status, intervi​ew notes, and assessment notes.​ See ​C​hapter​6​of this Part​for more information​ on termination of status​.​

D. Permanent Resident Status​ Has Not Already Been Acquired in the United States​

Refugees who have already acquired permanent resident status are ​not eligible to adjust status. ​Evidence of permanent resident status will most often be an approved ​adjustment application ​already in the applicant’s A-file.​

Refugees who ​sought ​adjust​ment of​ status prior to July 1998 ​applied through the local field office​. ​These refugees ​will ​usually ​have only an approved​ Memorandum of Creation of Record of Lawful Permanent Residence (Form I-181) ​in their A-file​ as evidence of their adjustment of ​status​. ​Refugees who adjusted status between 1998 and 2005 will usually have both an approved ​adjustment​ of status​ application​(​Form I-485​) ​and an approved ​Form ​I-181 in their A-file​.​

Refugees who adjusted status from 2005 to the present will usually have only an approved ​adjustment ​of status ​application​ in their A-file. ​The ​Form I-181 is no longer in use.​

E. Others Allowed to Apply for Adjustment ​under​INA ​209​ by Statute or Regulation​


​Historically,
USCIS has granted ​other ​foreign nationals ​status ​that​is​similar to the current refugee and asylee categories.​Although most of these ​person​s ​have already applied for adjustment ​of status ​due to the passage of time, an officer may occasionally encounter such cases. These ​applicant​s ​are eligible to apply for adjustment of status under ​INA ​209​ once certain conditions have been met​.​

1. Pre-April 1, 1980 Conditional Entrants ​


​Prior to April 1, 1980, the INA 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 what was then known as the seventh preference category. Conditional entrants were allowed to become permanent residents after a specified period (initially two years, later reduced to one year) in the
United States​.​


​The conditional entrant provisions were generally repealed by the Refugee Act of 1980, except that the repeal did not apply to
person​s ​who were granted conditional entry prior to April 1, 1980.​Accordingly, any conditional entrant encountered today who is seeking LPR status​should be treated in the same fashion as a refugee seeking permanent residence, except that the correct adjustment code is “P7-5.” ​

2. Persons Paroled as Refugees Prior to April 1, 1980​


​The Refugee Act also allowed
foreign national​s ​paroled into the ​United States​ as refugees prior to April 1, 1980 to adjust their status if ​they were ​eligible for the benefits of s​ection 5 of Pub. L. 95-412. ​The law states in part that “Notwithstanding any other provision of law, any refugee, not otherwise eligible for retroactive adjustment of status, who was or is paroled into the ​United States​ by the Attorney General pursuant to ​INA ​212(d)(5)​ before April 1, 1980, shall have his status adjusted pursuant to the provisions of ​INA 203(g)​ and ​(h)​ of the Act.” ​


​Therefore, a person paroled into the
United States​ as a refugee prior to April 1, 1980, may have his or her status adjusted to lawful permanent resident, if otherwise eligible. ​

3. Persons Paroled as Refugees Between April 1, 1980 and May 18, 1980 ​


​Some
foreign nationals​continued to be paroled into the ​United States​ for a few weeks after ​April 1, 1980.​They are to be treated the same as persons admitted under the ​former​seventh preference (conditional entrant) category​.​ [4] See 8 CFR 209.1(a)(2).Even though conditional entrance or parole of refugees was not permitted after passage of the Refugee Act, legacy​ INS may have done so in error.​ Since the adjustment of status of such ​a ​person is not covered by the INA or current regulations, ​the​ officer​ should contact the Refugee Affairs Division at the Refugee, Asylum, and International Operations Directorate (RAIO) for further guidance. ​

F. Special Considerations for Refugee Adjustment​ of Status​ Applicants​

O​fficer​s​must ​be aware of the following provisions affecting refugees applying for adjustment of status:​

R​efugees do not have to continue to meet the definition of “refugee” within the meaning of the INA after admission and may still adjust status as a refugee.​

Derivative refugees ​accompanying or following to join the principal refugee ​do not have to wait until the principal refugee has adjusted stat​us to adjust their own status. ​They are considered refugees in their own right once admitted to the ​United States.​

Derivative refugees do not have to maintain their familial relationship to the principal refugee after admission to the ​United States​ to be eligible to adjust status.​

There is no bar to adjustment ​of status ​for refugees who have firmly resettled in a foreign country subseq​uent to being admitted to the United ​S​tates​ as refugees​.​

There is no bar to adjustment ​of status ​for refugees who previously had the status of an exchange nonimmigrant under ​INA 101(a)(15)(J)​ and who had been subject to the foreign resident requirement under ​INA 212(e)​, even if the foreign resident requirement was never met. ​In this case, n​o waiver is necessary.​

1. Relationship Issues​

While reviewing a case, ​an ​officer may become aware that​,​ at the time a derivative refugee was admitted to the United States, he or she did not possess the requisite relationship to the principal refugee and as such ​was​not entitled to derivative refug​ee status at time of admission.​In certain instances, the​se applicants​ may be found inadmissible for fraud or misrepresentation because they were questioned about their marital status and familial relationships during the​ Form​I-590 ​interview ​or interview for ​Form ​I-730​derivative refugee status, ​or at the port of entry.​

Although the derivative refugees in each of the ​following ​examples have been admitted to the ​United States​ as refugees​, they were not eligible for that status when they were admitted ​because their status was dependent upon their relationship to the principal, ​and the relationship​did not exist or no longer existed at the time of admission.​ [5] See Matter of Khan, 14 I&N Dec. 122 (BIA 1972).T​he most common scenarios​ are​:​

Pre-Departure Marriages​

It is not uncommon for some derivative refugee children to marry prior to admission as a refugee to the ​United States​. The marriage​sever​s​ their familial relation​ship to the principal refugee. ​In February 2003, ​USCIS​office​r​s began requiring derivative​children of the principal refugee​ (RE-3 ​classification​) to sign an ​RE-3 Notice on Pre-Departure Marriage & Declaration​ statement.​

By signing the notice, RE-3 derivatives acknowledge that they will be ineligible for admission as a derivative refugee if they marry prior to being admitted to the ​United States.​ ​Refugee derivatives who sign this notice and who marry prior to being admitted to the ​United States​ as a refugee may also be found inadmissible for fraud or misrepresentation should they present the​mselves as unmarried children.​ A​ pre-departure change to marital status will render the​ applicant​ ineligible for admission as a derivative refugee​ r​egardless of whether ​the foreign national​ signs an RE-3 Notice​.​

Pre-Departure Divorces​

A derivative spouse (RE-2​ classification​) of a refugee who divorce​s​ the principal refugee prior to seeking admission as a refugee to the ​United States​ is ineligible for admission as a derivative refugee. ​Officers should note that i​f ​USCIS did not ask the ​derivative spouse about their marital status or eligibility at the time of admission​, the foreign national may not have committed an act of fraud or misrepresentation​.​

Non-Existent or Fraudulent Relationships​

Some derivative refugees may be untruthful on the ​refugee application​ about their marital status.​A derivative spouse (RE-2)​ may not have been legally married to the principal applicant when the ​refugee application​ was filed, although they may have publicly presented themselves as husband and wife. ​A derivative child (RE-3)​ may have been married when the ​application​ was f​iled but claimed to be single. ​Additionally, ​applicant​s ​who have no relationship to the principal could claim a relationship as either a spouse or child, and likewise the principal ​may​claim a relationship to them in order to gain access to the U.S. ​R​efugee ​Admission​s​ P​rogram.​

In all three scenarios, refugee adjustment allows most grounds of inadmissibility to be waived for humanitarian purposes, to assure family unity, or when it is otherwise in the publi​c interest. ​Many applicants who may be found inadmissible due to relationship fraud or ineligibility due to not having the requisite relationship at time of admission may be deserving ​of a waiver of that ground, especially those who have or had a legitimate familial relationship or common law​ relationship to the principal.​An o​fficer should use their discretion when granting these waivers and should consider the totality of the circumstances, including whether or not the derivative has had an actual relationship to the principal.​

2. Child Status Protection Act Provisions​

As of August 6, 2002, any derivative refugee child who had a pending ​relative petition (​Form ​I-730​)​,​ adjustment application​(​Form ​I-485​)​, or ​refugee application (​Form ​I-590​)​ on or after that date has had his or her age “frozen” as of the date the ​petition or application​ was filed.​ This was to allow the ​foreign national​’s ​continued classification as a child for purposes of both refugee classific​ation and adjustment of status.​ Any ​person ​who aged out prior to that date is not eligible for continuing classification as a child ​unless​one of these applications ​was pending on August 6, 2002. ​

An unmarried child who is under 21 on the day the principal ​refugee​files the ​refugee application​ will remain eligible to be classified as a child as long as he or she was listed on the parent’s ​refugee application​ prior to adjudication. In determining continuing eligibility as a derivative refugee child for adjustment, the officer need only verify that the derivative applicant’s age was under 21 at the time the ​refugee ​application ​or​the ​relative petition​ was filed, whichever form first listed the child.​