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Chapter 2: Eligibility Requirements


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


  • Admitted as a refugee under INA 207;

  • Physically present in the United States as a refugee for at least one year;

  • Refugee status has not been terminated; and

  • Permanent resident status has not already been acquired in the United States.


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


A. Admitted as a Refugee under INA 207


Only applicants 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 United States when their relative petition is approved are granted refugee status on the date they are admitted to the United States.


Immigrants Often Mistaken as Refugees:


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 genuinely think they are refugees. These applicants are not eligible for adjustment 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 meet the definition of a refugee. Asylees are similar to refugees in many ways and in some cases may be confused with refugees. However, asylees gain status through either an Application for Asylum and for 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 Parolees


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 Entrants


Since 1959, thousands of Cuban nationals have been paroled or admitted into the United States, many for humanitarian 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 persons who have been physically present in the United States for one year can adjust status under the Cuban Adjustment Act of 1966. 

 

Indochinese Parolees


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 Pub. L. 106-429. 

 

Humanitarian Parolees 


Persons throughout the world who are facing a humanitarian crisis may be paroled into 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 not qualify for refugee status but are facing some type of hardship. These foreign nationals generally have no means to adjust status based on their parole. 


Illegal Entrants


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 United States Armed Forces as a translator or interpreter (SI-1 classification). These foreign nationals are not refugees. The holder of a SI-1 classification will have an approved Petition 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 4th 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. government 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 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 4th 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 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 4th preference special immigrants. 


Aliens Erroneously Admitted to the United States as Refugees


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 Presence in the United States for at Least One Year


Refugees are required to have one year of physical presence in the United States 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 begins 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 counts 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


An applicant whose 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 Appear, and EOIR court records. Other evidence may include a notice of intent to terminate status, interview notes, and assessment notes. See Chapter 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 adjustment 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 persons have already applied for adjustment of status due to the passage of time, an officer may occasionally encounter such cases. These applicants 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 persons 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 nationals paroled into the United States as refugees prior to April 1, 1980 to adjust their status if they were eligible for the benefits of section 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


Officers must be aware of the following provisions affecting refugees applying for adjustment of status:


  • Refugees 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 status 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 subsequent to being admitted to the United States 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, no 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 refugee status at time of admission. In certain instances, these 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). The 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 severs their familial relationship to the principal refugee. In February 2003, USCIS officers 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 themselves as unmarried children. A pre-departure change to marital status will render the applicant ineligible for admission as a derivative refugee regardless of whether the foreign national signs an RE-3 Notice.


Pre-Departure Divorces


A derivative spouse (RE-2 classification) of a refugee who divorces 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 if 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 filed but claimed to be single. Additionally, applicants 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. Refugee Admissions Program. 


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 public 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 officer 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 classification 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.




Footnotes


1. [^] 

 See Part M, Asylee Adjustment [7 USCIS-PM Mfor details on adjustment of status for asylees.


2. [^] 

  See INA 209(a).

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.


4. [^] 

 See 8 CFR 209.1(a)(2).

5. [^] 

 See Matter of Khan, 14 I&N Dec. 122 (BIA 1972).




Updates


Date Details
March 4, 2014
POLICY ALERT

Refugee and Asylee-Based Adjustment of Status under Immigration and Nationality Act (INA) Section 209

​U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address adjustment of status applications filed by refugees and asylees under INA sections 209(a) and 209(b).

Read more »


Current as of July 1, 2014