Chapter 2 Outline
- A. Physical Presence in the United States of at Least One Year
- B. Principal Asylee Continues to Meet the Definition of a Refugee
- C. Derivative Asylee Continues to be the Spouse or Child of the Principal Asylee
- D. Not Firmly Resettled in Any Foreign Country
An asylee may adjust status to a lawful permanent resident if the asylee meets the following four requirements:
The asylee has been physically 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 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.
Only time spent in the United States counts towards the one-year physical presence requirement. A principal asylee’s physical presence starts 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 relative petition (Form I-730) or the principal asylee’s asylum application (Form I-589), whichever 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 officer 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.
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:
Membership in a Particular Social Group
If an applicant no longer meets the definition of a refugee, 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, if 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 refer the case to the Asylum Division within the Refugee, Asylum, and International Operations Directorate or to an Immigration Judge for termination of status. For more information, see Chapter 6, Termination of Status and Notice to Appear Considerations [7 USCIS-PM M.6].
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 derivative asylee spouse fails to meet this eligibility requirement if the marital relationship has ended. A derivative child fails to meet this requirement if he or she marries or no longer meets the definition of a child. See INA 101(b)(1). Likewise, if the principal is no longer a refugee or adjusted asylee at the time a derivative seeks 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 Immigration and Nationality Act (INA) 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 meets 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. 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 Adjustment of Status
A spouse who is divorced from the principal asylee is no longer a spouse of the principal and is no longer eligible to adjust status as a derivative asylee.
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 asylum 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 Asylee has Naturalized
A principal asylee who has naturalized no longer meets the definition of a refugee. 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 Asylee Who No Longer Meets Definition of Refugee and has Asylum Status 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, these cases are handled by the Asylum Division of the Refugee, Asylum and International Operations (RAIO) Directorate. New asylum applications can be filed by derivative asylees requesting to be considered as principal applicants.
If an officer encounters 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. 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 potential termination of status.
Derivatives 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 bona fide relationship to the principal asylee. Examples would include a claimed spouse who was never legally married to the principal although 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 asylees, 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 potential termination of status.
An 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 has been offered resident status, citizenship, or some other type of permanent resettlement in another 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.
For more information, see Chapter 6, Termination of Status and Notice to Appear Considerations [7 USCIS-PM M.6].
See INA 204(l) and Adjudicator's Field Manual (AFM) Chapter 10.21(C), Receipting and Acceptance Processing for additional guidance.
March 4, 2014
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).
|Chapter 1||Top of Page||Chapter 3|