Chapter 5: Adjudication Procedures

A. Record of Proceedings (ROP) Review and Underlying Basis​

The officer should place all ​documents ​in the file according to the ​established ​Record of Proceedings order, including the filing of any documents ​the applicant submitted in response to ​a Request for Evidence (RFE). ​

When ​the officer reviews ​the application for adjustment of status of a refugee, ​the ​officer should​also ​review the refugee travel packet to verify the ​applicant​’s ​identity, refugee status and admission, completion of the overseas medical exam and to ensure consistency with the ​adjustment application​. There are several forms that may be found in the A-file that may be of particular importance:​

Registration for Classification as Refugee​ (Form I-590)​

This form documents identity, marital status, number of children, military service, organizational memberships and any violations of law. A photo of the refugee should be attached to the upper left hand corner. In addition, the ​Port​ of ​Admission Block​ at the bottom of the second page shou​ld be stamped.​ This indicates the refugee’s particular port of entry and date of admission. ​

Sworn Statement of Refugee Applicant for Entry into the US​ (G-646)​

This form documents the ​applicant’s testimony regarding possible persecutory acts​ and the inadmissibility provisions that pertain to refugees. ​

Refugee Assessment​

This document​, completed by a USCIS Officer,​ contains the testimony given by the ​principal ​refugee to establish his or her claim for refugee status during an interview with a USCIS Officer and includes the officer’s legal analysis including an assessment of the applicant’s ​eligibility under the ​refugee ​definition​, admissib​i​lity and credibility. ​

Case History/Persecution Story​

This document details the ​key ​material aspects of the principal refugee’s life from birth up to the time of refugee processing​.​It​is completed by ​Resettlement Support Center (RSC)​ staff under cooperative agreement with the Department of State​ (DOS)​. ​

Family Tree​

This document contains the biographic information and family relationships for the principal refugee and each person included in the case of the principal refugee.​ The family tree is completed by RSC staff under cooperative agreement with the DOS.​

Referrals from the Office of the United Nations High Commissioner for Refugees​(​UNHCR​)​, ​the ​U.S. Embassy or Nongovernmental Organization ​(NGO)​

These documents contain biographical information, family relationships, organizational memberships, political/social/ religious affiliations, any detentions or imprisonments, the refugee claim, and inadmissibility issues. ​This document is completed by ​UNHCR​, the U.S. Embassy or the referring NGO.​

Record of Medical Examination​

This form documents the pre-departure medical examination of the refugee. Any Class A conditions would be noted, as would any recommendations for follow-up treatment.​

B. Interview Criteria​

The decision to interview a refugee applicant for adjustment of status will be made on a case-by-case basis​.​ [1] See 8 CFR 209.1(d). Interviews are generally required when ​an​ officer at a Service Center is unable to verify identity or eligibility or to determine admissibility based solely on the immigration records available to the officer. ​Although the decision​ to relocate a case to a ​f​ield ​o​ffice ​for interview​ will be made on a case-by-case basis​, ​an officer at the ​Service Center should ​generally relocate a case to the field ​office ​for interview if it meets one of the following criteria:​

The ​officer cannot verify the ​identity of the applicant ​through​ the information in the A-file.​

The ​officer can verify the ​identity of the applicant ​through​ the information in the A-file​,​ but the applicant is claiming a new identity.​

Immigration records are insufficient​ for the officer​ to determine whether or not the applicant has refugee status.​

The applicant ​has an approved Form​I-730 ​but​, if ​granted ​overseas, was not interviewed as part of the derivative refugee process or, if ​granted ​in the ​United States​, was not interv​iewed prior to the ​approval​.​ [2] See Section C, Beneficiaries Applying for Adjustment without Prior Interview Overseas [7 USCIS-PM L.5(C)].

The applicant’s FBI fingerprint results ​indicate that further processing is needed​.​

The ​officer cannot determine the ​applicant’s admissibility without an interview.​

The ​officer determines that the ​applicant is inadmissible but ​that an ​interview​ is necessa​ry​ to determine if a waiver is appropriate.​

C. Beneficiaries Applying for Adjustment ​w​ithout​ Prior Interview Overseas​

Within two years of his or her admission, a refugee may petition for a spouse and child(​ren​) on a Refugee/Asylee Relative Petition​ (​Form ​I-730​)​. When proceeding from abroad, the derivative beneficiary is required to undergo an over​seas interview and processing. ​When applying for adjustment of status, there is the possibility that some derivative family members may not have gone through the overseas process or ​may not have ​been admitted to the ​United States​ as refugees. ​

For example, beneficiaries of an approved ​relative petition​ sometimes enter the ​United States​ without inspection or on a nonimmigrant visa. The beneficiaries may never have received an ​interview confirming ​their ​identity and relationship to the principal, which is part of the ​USCIS process ​overseas. ​Under current regulations, refugee status is conferred on the beneficiary at the point he or she is present in the United States with an approved petition, although the beneficiary may never have provided biometrics or appeared in person before a USCIS or consular officer to verify his or her identity.​

In addition, a derivative refugee must be admissible to the ​United States​ (i.e., if any of the grounds of inadmissibility apply to the derivative refugee, the grounds must be waived before the derivative refugee is ful​ly qualified for such status). ​Since​,​ in this particular situation​,​ the ​applicant ​was not interviewed overseas and was not inspected and admitted as a refugee at a port of entry, it raises the possibility that a ground of inadmissibility may exist. ​

To address these concerns and to verify identity and the familial relationship, in the event a derivative family member of a refugee is applying for adjustment of status without having been previously interviewed either abroad or in the ​United States​, ​the officer should ​refer​ him or her ​for an interview at a field office as part of the adjustment of status process. ​

During the interview process, the USCIS officer will verify the identity of the beneficiary and the requisite familial relationship to the principal as well as examine the beneficiary’s eligibility for admission as an immigrant. The officer may conduct a background investigation to address any of these issues, provided that ​the investigation​maintain​s​ the confidentiality of the principal’s refugee application. ​

D. Requests to Change Name​ or ​Date of Birth​

The officer must address and reconcile a​ny discrepancy in biographical information found in case records or USCIS data systems ​at the time of adjustment. ​During the overseas interview, ​the ​refugee reviewed the​ir refugee application, relative petition,​ and biographical information and had the opportunity to correct any errors or resolve any ident​ity issues at that time. ​An o​fficer may not accept an affidavit as proof of a changed name or ​erroneous ​date of birth.​

The ​o​fficer should be aware that name changes may occur after the refugee interview, such as in the case of a legal adoption, marriage o​r divorce.​ Applicants requesting a name change at time of adjustment will need to submit one of the following documents​ issued by a civil authority​, ​(​whether ​by a ​foreign​state ​or U.S.​ authority​)​: ​

Legal name change decree – lists former and new legal name​;​

Marriage certificate – listing maiden name/last name of spouse​;​

Divorce decree – showing restoration of maiden name​; or​

Adoption decree – lists adopted child’s birth name and the names of the adoptive paren​ts​.​

While there may be a reasonable explanation for a refugee to change his or her name after arrival, ​an officer​ should consider whether such a change raises the possibility that the person either used an alias or committed fraud or misrepresentation at the time of the overseas interview.​

E. Spelling of Names and ​Naming Convention Issues​

From time to time, refugee adjustment applicants may complete an ​adjustment application​ by filling out their name in some variation of ​what​ was listed on the ​refugee application​ or ​relative petition​. ​Although ​some ​immigrants may be permitted on other local or federal government-issued documents to anglicize their name or to use a slightly different spelling, refugees ​are not​ permitted to change the spelling of their names from ​what was ​listed on their ​refugee application​ or ​relative petition​ or to use an anglicized​ version at time of adjustment.​ This ​is prohibited ​in order to preserve the continuity and integrity of immigration records on the ​refugee​. ​

Occasionally, the ​refugee application​ or ​relative petition​ may contain an error in the spelling or the order of a person’s name. If, based on a review of underlying documents in the refugee packet, ​the officer ​clearly recognizes such an error​,​he or she​ may correct the error by amending the name on the ​adjustment application​ accordingly. If the applicant is approved for permanent resident status, the name must also be amended in the appropriate electronic systems.​

F. Detained Refugees​

In certain circumstances,​ U.S. Immigration and Customs Enforcement (ICE) may encounter a refugee​ who has failed to timely file for adjustment of status under ​INA 209(a)​. This most often occurs when ​the refugee​has been apprehended by other law enforcement agencies for suspected criminal activity.​If ICE determines that the ​refugee ​shoul​d be placed in removal proceedings, the local ​Enforcement ​and Removal ​Operations ​Field ​Office (​E​RO) will ​promptly ​reach out to its corresponding USCIS ​F​iel​d ​O​ffice ​D​irector or designated​ point-of-contact to begin the adjustment of status process. ​

The ​ERO ​field office will advise the ​refugee ​of the requirement by law to file for adjustment of status and ​will ​provide ​him or her​ with a​n adjustment application​ and ​waiver application​ to fill out prior to the ​refugee’s​release from custody. ​Should the ​refugee ​refuse, ICE personnel will fill out Part 1 of both forms instead and sign ​them​ as completed by ICE. Originals are sent to the USCIS Field Office Director or designee for expedited processing.​ The field office should ​follow procedures to alert the Nebraska Service Center (NSC) by e-mail that they are sending a faxed copy of the adjustment application for expeditious handling.​

If the NSC determines ​that the refugee has already submitted a refugee-based adjustment application or has a denied ​refugee-based ​adjustment application​, they will contact the field ​office concerning the use of the previously​-​filed ​application​. ​If a case is already pending at the NSC, the NSC Duty Attorney will determine whether the case should be completed at the NSC or ​re​located to the field office for final adjudication.​

If ​the NSC does not locate a​prior ​adjustment application​, the NSC will assign a receipt ​number​ to the application and will update the necessary systems so that adjudication ​of the ​application​ at the field office ​may pr​oceed​. ​

G. Decision​

1. Approval​

If ​the ​adjustment ​application is properly filed​, t​he​ applicant meets ​all ​eligibility requirements, ​and the applicant satisfies admissibility and waiver requirements, then​ the ​officer must approve the ​application​.​ Unlike most applications for adjustment of status, refugee adjustments are not discretionary​,​ and the ​application​ may only be denied if the applicant is found to be ineligible, inadmissible, or ​if ​the application was improperly filed.​

Effective Date of Residence​

If the adjustment application is approved​, the effective date of permanent residence ​is​ the date the applicant was first admitted to the United States​ as a refugee. ​

The effective date of permanent residence for derivative refugees who gained their status through an approved ​relative petition​ and who were already in the United States when the ​petition​ was approved will be the date the ​relative ​petition​ was approved.​

Code of Admission​

A​n applicant​ who has been granted refugee status in his ​or her ​own right (RE-1, ​classification​as ​a principal) is adjust​ed​ using the code ​“​RE-6.​”​The RE-6 code should not be used for the former spouse or child of a principal refugee where that relationship terminated after the derivat​ive was granted refugee status.​ The RE-6 code is reserved solely for the principal refugee to ensure there is no confusi​on​ regarding the eligibility to file ​a relative petition​.​

A​n applicant​ who was admitted as a spouse of a refugee (RE-2​ classification​) who either remains the spouse or becomes a former spouse of the principal at time of adjustment is given the code ​“​RE-7​.​”​ An ​applicant​who was admitted as a child of a refugee (RE-3​ classification​) ​is given the code ​“​RE-8​,​”​regardless​of the child’s marital status or current age ​at time of adjustment​.​

In cases of nonexistent or fraudulent derivative refugee relationships in which a waiver was granted, ​applicants ​should be given an adjustment code of RE-7 or RE-8, depending on the ​original admission code given, even though they are not technically the derivative spouse or child of the principal refugee.​

Classes of Applicants & Corresponding ​Codes of Admission​

Applicant​

Code of Admission​

Refugee (Principal)​

RE6​

Spouse of a​ Principal Refugee (​RE6​)​

RE7​

Child of a​ Principal Refugee (​RE6​)​

RE8​

T​he officer must ensure that the refugee’s new Class of Admission (COA) information is updated ​in the​ appropriate​ electronic systems​, so that ​the applicant will receive ​a permanent resident car​d​.​After completion, ​A-files ​will be ​routed to the National Records Center (NRC).​

2. Denial​

If ​the ​adjustment application​ is denied based on inadmissibility, the refugee should be placed into removal proceedings​, provided there are applicable grounds of deportability under ​INA ​237​.​ [3] See Matter of D-K-, 25 I&N Dec. 761 (BIA 2012). The foreign national “must be charged in the notice to appear under section 237 of the [INA] rather than section 212 of the Act.” See Matter of D-K-, 25 I&N Dec. 761, 761 (BIA 2012).

If ​the ​adjustment application​ is denied based on improper filing​, ​abandonment​, or ineligibility​, the applicant has not been inspected for admission and should not be placed into removal proceedings because no determination of admissibility has been made.​The applicant continues to have refugee status until such time that the ​applicant​is inspected and an admissibility determination is made.​

The ​officer should write a denial notice​explaining ​the reasons for denial in clear language ​that ​the applicant can understand.​There is no appeal from the denial, but the applicant may renew the application for adjustment while in removal proceedings before the Immigration Judge.​