Chapter 2: Eligibility Requirements

An asylee may adjust status to a lawful permanent resident if the asy​lee meets the following four requirements:​

The asylee has been p​hysically present in the ​United States​ for at least one year after ​being​ granted asylum​.​

The principal asylee continues to meet the definition of a refugee, or the derivative asylee continues to be the spouse or child of the principal asylee.​

The asylee has not​ firmly resettled in any foreign country​.​

The asylee is​ admissible to the ​United States​ as an immigrant at the time of examination for adjustment​ of status​, subject to various exceptions and waivers​. ​

Applicants who fail to meet any of these requirements are statutorily ineligible for adjustment of status​ as an asylee​. ​

The Immigration Act of 1990 (​IMMACT 90​)​ added additional eligibility requirements to ​applicants ​granted asylum who wish to adjust status. USCIS issued regulations​ [1] See 8 CFR 209.2(a)(2). to clarify that ​persons ​granted asylum status prior to enactment of IMMACT 90 would not be subject to these additional requirements at time of adjustment. ​

Therefore, ​applicants ​who were granted asylum prior to November 29, 1990 may have their status adjusted to permanent residents even if they no longer are a refugee due to a change in circumstance, no longer meet the definition of a refugee, or have failed to meet ​the required ​one year of physical presence in the United States after being granted asylum. These ​applicants ​need only apply for adjustment and establish that they have not been resettled in another country and are not inadmissible to the United States. ​

Although it is unlikely that any of these cases ​still ​remain​ pending​, an officer should be aware of these special provisions that apply to any asylum adjustment applicant whose grant of asylum was prior to November 29, 1990.​

A. Physical Presen​ce​ in the United States ​of ​at Least​ One Year​

Only time spent in the Unit​e​d States counts toward​s​ the one-year physical presence requirement. A principal ​asylee’s​ physical presence start​s accruing​ on the date​ the asylee is granted asylum. ​

If a derivative asylee was physically present in the United States when USCIS approved his or her ​r​elative ​p​etition ​(​Form ​I-730​) ​or the principal ​asylee’s​ asylum application ​(​Form I-589​), ​which​ever is applicable​, then the derivative asylee ​may ​start accruing physical presence on the approval date of the petition or application. If the derivative asylee is living abroad ​when ​USCIS approves ​the relative petition, then the derivative ​asylee’s​ physical presence begins accruing on the date of admission as an asylee.​

An asylee who travels outside the ​United States​ as an asylee will not meet the physical presence requirement until the cumulative amount of time spent in the ​United States​ equals one year. ​The o​fficer should review the ​asylee’s​ adjustment application and ​the ​documentation in the ​record to determine whether the asylee has been absent from the United States during the previous calendar year ​to ​ensure the asylee meets the physical presence requirement for adjustment.​

B. Principal ​Asylee Continues to Meet the Definition of a Refugee​

In order to be eligible for asylee status, the​ principal asylee had to show a well-founded fear of ​persecution ​based on at least one of five ​statutory​ grounds: ​

Race​

Religion​

Nationality​

Membership in a Particular Social Group​

Politica​l Opinion​

If ​an applicant no longer meets the ​definition of a refugee​,​ [2] See INA 101(a)(42).he or she is​not eligible to adjust status ​as an asylee​. ​In general, at the time of adjustment, an officer will not ​readjudicate​ the asylum claim. However, i​f​there is​ new evidence that the asylee ​may ​not ​have ​met the definition of a refugee at the time of ​the ​asylum grant, ​the officer​should​r​efer the ​case to the ​Asylum ​Division​within ​the ​Refugee, Asylum, and International Operations ​Directorate ​or ​to an​ Immigration Judge for termination of status.​ [3] For more information, see Chapter 6, Termination of Status and Notice to Appear Considerations [7 USCIS-PM M.6].

C. Derivative Asylee​ Continues to be the Spouse or Child of the Principal Asylee​

A​ derivative asylee​ must ​continue to ​meet the definition of a spouse or child​of a refugee ​both​at ​the ​time​ of ​filing and ​final ​adjudication of the adjustment application.​A d​erivative​ asylee​spouse ​fail​s​ to meet this eligibility requirement if the ​marital ​relationship ​has ​end​ed​.​A​ derivative child fails to meet this requirement if he or she marries​ or no longer meets the definition of a child​.​ [4] See INA 101(b)(1). Likewise, i​f the principal is no longer a​ refugee or adjusted​ asylee​ at the time a derivative seek​s​ to adjust status, then the derivative asylee will no longer qualify​.​

A derivative asylee who fails to meet this requirement does not lose his or her asylum status when the relationship to the principal asylee ends or when the principal asylee naturalizes. A derivative asylee only loses the ability to adjust status as a derivative asylee, but may adjust status under another category if he or she can establish eligibility. ​

1. Surviving Spouse or Child of a Deceased Principal Asylee​

The​ I​mmigration and Nationality Act (I​NA​)​was amended by the addition of ​section 204(​l​) ​which ​allows USCIS to approve ​an adjustment of status application for the derivative spouse or child of a deceased qualifying relative​, including a derivative spouse or child of a ​deceased ​principal asylee​. Therefore, an applicant that meet​s​ all the requirements of this new law will remain a derivative spouse or child of an asylee for purposes of adjustment of status​ even after the principal ​asylee’s​ death​.​

This applies to an adjustment of status application adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition or application was denied on or after October 28, 2009, without considering the effect of this section, and the section could have permitted approval, USCIS must, on its own motion, reopen the case for a new decision in light of this new law.​ [5] See INA 204(l) and Adjudicator's Field Manual (AFM) Chapter 10.21(C), Receipting and Acceptance Processing for additional guidance.

2. Derivative Asylees Ineligible for Adjus​tment of Status​

Divorced ​S​pouse​

A spouse ​who ​is​ divorce​d from​ the principal asylee is no longer ​a spouse of the principal​ and ​is no longer ​eligible to adjust status as a derivative asylee.​

Married ​C​hild​

A child who ​is ​married ​either at the time of filing or ​at the time of ​adjudication of the ​adjustment of status application​is no longer ​considered a child of ​the ​principal​ and​is no longer ​eligible to adjust status as a derivative asylee. ​However, a​ child who ​was ​married ​after his or her grant of derivative asylum status, but has since divorced ​(​and ​is ​therefore ​unmarried at the ​time of ​filing for ​adjustment of status​)​ may qualify once again as the derivative child of the principal asylee, provided the child is under 21 or eligible for the benefits of the Child Status Protection Act (CSPA).​

Child ​21 or older​ and not eligible for benefits under the Child Status Protection Act (CSPA​)​

Certain derivative children who have turned 21 years old and are not protected by the CSPA are no longer eligible to adjust status as a derivative asylee. This is generally only seen in cases that were ​filed prior to August 6, 2002. ​

As of August 6, 2002, any derivative asylee child who had a pending ​refugee/asylee relative petition (​Form I-730​)​, ​adjustment application (​Form I-485​)​ or​principal’s ​asylum application (​Form I-589​)​ on or after that date had his or her age “frozen” as of the date the ​application ​was filed. This allows the ​foreign national’s ​continued classification as a child for purposes of both asyl​um​ and adjustment of status. Any ​person ​who aged out prior to ​August 6, 2002 ​is not eligible for continuing classification as a child unless one of these applications ​was pending on August 6, 2002. ​

As a result of CSPA provisions, an unmarried child who is under 21 on the day the principal asylee files the ​asylum application ​will remain eligible to be classified as a child as long as he or she was ​eligible to be ​listed on the parent’s ​asylum application​ prior to adjudication and ​is unmarried at the time of adjudication​. In determining continuing eligibility as a child for adjustment, the officer need only verify that the derivative applicant’s age was under 21 at the time the ​principal’s ​asylum application ​was filed and that the child ​is currently​ unmarried.​

Principal ​A​sylee has ​N​aturalized​

A principal asylee who has naturalized no longer meets the definition of a refugee.​ [6] See INA 101(a)(42). Therefore, once the principal has naturalized, a spouse or child is no longer eligible to adjust status as a derivative asylee because they no longer qualify as the spouse or child of a refugee.​

Principal ​A​sylee ​Who N​o ​L​onger ​M​eets ​D​efinition of ​R​efugee ​and has A​sylum ​S​tatu​s Terminated)​

If a principal asylee no longer meets the definition of a refugee ​and ​his or her asylum status is terminated, then a derivative asylee is also no longer eligible to adjust status.​

3. Nunc​ Pro ​Tunc​ Asylum Cases​

“​Nunc​ pro ​tunc​,​”​meaning “now for then,” refers to cases where a derivative asylee who is ineligible to adjust status as a derivative asylee may ​file for and be granted​ asylum in his or her own right ​and the grant may be dated as of​ the date of the original principal’s asylum grant. ​Any ​foreign national ​who is physically present in the United States regardless of status may ​apply for asylum. ​In certain cases, the ​nunc​ pro ​tunc​ process ​may enable ​a derivative asylee ​who is ineligible to adjust as a derivative ​to become a principal asylee​ and ​eligible to adjust status. ​

Like any other asylum application filed with USCIS, t​hese cases are handled by the Asylum Division of the Refugee, Asylum and International Operations (RAIO) Directorate​. N​ew asylum applications ​can be filed by derivative asylees ​requesting to be ​considered ​as principal applicants. ​

If​ an officer encounter​s​ a case in which the ​applicant ​is not eligible for adjustment of status as a derivative asylee, the adjustment application ​should ​be denied. ​

4. Pre-Departure Marriages and Divorces​

Occasionally, derivative asylees who are admitted to the United States ​based on a​refugee/asylee relative petition​ (​Form I-730​)​ process will end their relationship to the principal asylee through either divorce or marriage after the grant of the ​petition​,​but before being admitted to the United States. ​In these cases, if​ the derivative asylee was admitted to the United States, ​he or she was ​not eligible for that status at time of admission because the status was dependent upon the relationship to the principal, which no longer existed at time of admission.​ [7] See Matter of Khan, 14 I&N Dec. 122 (BIA 1972).

While ​USCIS​ may pursue termination of status on these ​applicants​, the actual relationship of the derivative to the principal may be a consideration in the determination. ​In cases in which the officer makes an initial determination that termination may be ​appropriate​, he or she should return the file to the Asylum Office for further review and po​tential termination of status. ​

D​erivatives who end their relationship with the principal asylee at any time are not eligible to adjust status in their own right, but may be eligible ​to file for asylum as a principal applicant​.​

5. Non-Existent or Fraudulent Relationships​

At times, ​an officer may discover​ that a derivative asylee never had a bon​a​ fide relationship to the principal asylee. Examples would include a claimed spouse who was never legally married to the principal ​al​though they may have cohabitated or other relatives ​who are ​claimed as children. Those derivatives will be ineligible to adjust status. ​

Additionally, ​applicants ​who have no relationship to the principal asylee could claim a relationship as either a spouse or child, and likewise the principal asylee ​could ​claim a relationship to them, in order to ​be granted asylum​. These applicants are ineligible for admission as derivative asylees and may be found ​removable ​for fraud or misrepresentation​.​

Although they were admitted as derivative asylee​s​, they were not eligible for that status when they were admitted because their status was dependent upon their relationship to the principal, which did not exist at the time of admission. ​USCIS​ may decide to pursue termination of status on these ​persons​; however, the actual relationship of the derivative to the principal should be ​a factor​ when considering possible termination of status.​

In cases in which the adjustment officer makes an initial determination that termination may be ​appropriate​, he or she should return the file to the Asylum Office for further review and po​tential termination of status. ​

D. Not ​Firmly Resettled in Any Foreign Country​

A​n ​applicant who​ has firmly resettled in another country is ​not ​eligible ​to obtain either asylum or adjustment of status​ as an asylee​ in the United States. A​ person​ is considered firmly resettled in another country if he or she ha​s​ been offered resident status, citizenship, or some other type of permanent ​resettlement ​in a​nother​ country.​

The asylum officer would have considered whether the application was firmly resettled prior to arriving in the ​United States​ so an officer considering the adjustment of status application would rarely need to reconsider the prior determination. However, any ​evidence​in the file that suggests ​resettlement ​in another country subsequent to the​ granting of asylum status​ will need to be considered​.​