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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). 


In determining eligibility for adjustment of status as an asylee, the officer should review the underlying application (either Form I-589 or Form I-730) that provided the applicant with asylum status. The application will establish identity, family relationships, and date of grant of asylum status (if a principal asylee or a derivative asylee was within the United States at time of grant). 


B. Interview Criteria


Officers will make the decision to interview an asylee applicant for adjustment of status on a case-by-case basis.[1] See 8 CFR 209.2(e). Interviews are generally required when an officer at a Service Center is unable to verify identity or eligibility or determine admissibility based solely on the available immigration records. Although officers may decide to relocate a case to a Field Office for interview on a case-by-case basis, the Service Center Officer should generally relocate a case to the field 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 asylum status.


  • The applicant has an approved Form I-730 but, if granted overseas, was not interviewed as part of the overseas process or, if in the United States, was not interviewed prior to the approval.


  • The applicant’s FBI fingerprint results indicate a record that may cause the applicant to be inadmissible, or the applicant has had 2 unclassifiable fingerprints and the applicant must provide a sworn statement at an interview.


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


  • The officer determines that the applicant is inadmissible but that an interview is necessary to determine if a waiver is appropriate.


  • There is evidence that suggests that the original grant of asylum may have been obtained through fraud or misrepresentation.


  • There is evidence that suggests that the principal asylum applicant no longer meets the definition of a refugee.


  • There is evidence that suggests that the asylee derivative beneficiary no longer has the requisite relationship to adjust status as a derivate spouse or child.


These interview criteria may be modified in response to developing circumstances and concerns, which would dictate the need for further restrictions.


C. Beneficiaries Applying for Adjustment within the United States without a Prior Interview


A principal asylee may petition for immediate family members within two years of admission on a Form I-730, Refugee/Asylee Relative Petition. When proceeding from abroad, the derivative asylee is required to undergo various interviews and processing steps overseas. When applying for adjustment of status, there is the possibility that some derivative family members may not have undergone overseas processing and may have entered the United States prior to or after being granted derivative asylum status.


For example, beneficiaries of an approved Form I-730 sometimes enter the United States without inspection or with a nonimmigrant visa. The beneficiaries may never have received an interview confirming identity and relationship to the principal, which is part of the overseas process. Because asylum status is conferred on the beneficiary at the point they are present in the United States with an approved Form I-730 petition, the derivative asylee may have gained status without having to provide biometrics or appear in person before an officer to verify his or her identity.


In the event a derivative asylee (Form I-730 beneficiary) is applying for adjustment of status without having been previously interviewed either abroad or in the United States, he or she should be referred for an interview at a field office as part of the adjustment of status process and to verify identity and the familial relationship.


During the interview process, the officer will verify the identity of the derivative asylee and the requisite familial relationship to the principal as well as examine the derivative asylee’s eligibility for admission as an immigrant.[2] See INA 209(b).


D. Waiver Instructions


When the officer determines that an applicant is inadmissible and a waiver is available, the officer may grant the waiver without requiring submission of an Application by Refugee for Waiver of Grounds of Excludability (Form I-602), if:


  • The applicant is inadmissible under a ground of inadmissibility that may be waived (other than health related grounds);


  • USCIS records and other information available to the officer contain sufficient information to assess eligibility for a waiver; 


  • There is no evidence to suggest that negative factors would adversely impact the exercise of discretion; and


  • It is appropriate to grant a waiver.


If the adjudicating officer determines that a waiver application (Form I-602) is not required, the officer should indicate that the waiver has been granted by annotating on the adjustment application the particular inadmissibility that has been waived. The officer may use a written annotation, stamp, or pre-printed label to indicate the specific inadmissibility ground that is being waived in any open space on the face of the adjustment application. 


An officer’s signature and approval stamp on the adjustment application also serves as the signature and approval of the waiver for any waived grounds of inadmissibility specified on the face of the adjustment application. Waivers granted because the vaccinations were not medically appropriate or other blanket waivers for medical grounds do not require a waiver annotation on the adjustment application or the medical examination and vaccination record (Form I-693). All others require an annotation. 


When a waiver application is required, the officer should stamp the waiver application approved, check the block labeled “Waiver of Grounds of Inadmissibility is Granted,” and make the appropriate endorsements in the space provided. 


In both instances, there is no need for a separate approval notice since the approval of the adjustment application will also indicate the approval of the waiver or the waiver application. .


If the applicant is statutorily ineligible for a waiver (i.e., he or she is inadmissible under a ground of inadmissibility that cannot be waived) or if there are sufficient negative factors to warrant denial of the waiver application, the officer should check the block labeled “Waiver of Grounds of Inadmissibility is Denied” and write “See Form I-291”[3] USCIS uses the Form I-291 to inform the applicant of the denial of his or her application. in the space labeled “Reasons.”


The officer should be fully discuss the denial of the waiver in the written decision of the adjustment application. While there is no appeal from the denial of the waiver application, an immigration judge may consider the waiver application de novo when he or she considers the renewed adjustment application during removal proceedings. 


E. Requests to Change Name or Date of Birth 


Asylum-seekers sometimes enter the United States with fraudulent documentation. This fraudulent biographical information may be entered in the agency’s information systems as an alias. The asylee will have to address and reconcile any outstanding discrepancies in biographical information found in case records or USCIS data systems at the time of adjustment. 


While a principal asylee would have had his or her identity confirmed at time of asylum grant, this may not be true for derivative asylees who had neither an overseas interview nor an interview by a USCIS officer as a part of the Form I-730 adjudication process. 


In this case, the derivative asylee may have to provide documentation as proof of his or her true identity if the biographical information contained on the Form I-730 does not match the information contained on the adjustment application. Additionally, the applicant would need to provide a reasonable explanation for why his or her true identity, including name and date of birth, was not properly established with the Form I-730.


During the asylum or overseas interview, asylees reviewed their asylum application or relative petition and biographical information and had the opportunity to correct any errors or resolve any identity issues at that time. Therefore, an officer should be cautious in reviewing any documents that now assert a change to the applicant’s name or date of birth, as it raises the possibility that the person either used an alias or committed fraud or misrepresentation at the time of the asylum or overseas interview. An officer may not accept an affidavit as proof of a changed name or date of birth.


An officer should be aware that name changes may legitimately occur after the asylum or overseas interview, such as in the case of a legal adoption, marriage or divorce. Applicants requesting a name change at the time of adjustment will need to submit one of the following civil-issued documents: 


  • Legal name change decree – lists former and new legal name

  • Marriage certificate – lists maiden name/last name of spouse

  • Divorce decree – shows restoration of maiden name

  • Adoption decree – lists adopted child’s birth name and the names of the adoptive parents


F. Spelling of Names and Naming Convention Issues


From time to time, asylee adjustment applicants may complete an adjustment application by filling out their name in some variation of that which was listed on the Form I-589 or Form I-730. Although immigrants may be permitted on other local or federal government-issued documents to change their name or use a slightly different spelling, asylees will not be permitted to change the spelling of their names from that listed on their asylum application or relative petition or to use another version of their name at time of adjustment, unless the applicant provides documentation of a legal name change. This is prohibited in order to preserve the continuity and integrity of immigration.


The asylum application or relative petition might contain an error in the spelling or the order of a person’s name. If an officer, based on a review of underlying documents in the A-file, recognizes that the original application or petition clearly had an error and the applicant is requesting the corrected name on the adjustment application, the officer may correct the error by amending the name on the application. If the applicant is granted permanent resident status, the name must also be corrected in the appropriate electronic immigration systems.


G. Decision


1. Approvals


If the application is properly filed, the applicant meets the eligibility requirements, and the applicant satisfies admissibility or waiver requirements, then the officer may approve the adjustment application as a matter of discretion. 


Effective Date of Residence


The date of adjustment for approved applications filed by asylees shall be one year prior to the date of being approved for permanent residence. 


For example, an asylee is granted asylum status on January 1, 2007. The asylee files for adjustment of status on March 15, 2009, and the application is approved on July 1, 2009. The date of adjustment of status is rolled back one year to July 1, 2008. This is the date that will appear on the applicant’s permanent resident card and in USCIS systems. Additionally, the one-year roll back is counted toward physical presence for naturalization purposes.


Code of Admission


An applicant who has been granted asylum status as a principal asylee is adjusted using the code “AS-6.” The AS-6 code is reserved for the principal asylee to ensure there is no confusion regarding the eligibility to file a relative petition. The AS-6 code also applies to asylees who were granted asylum through the nunc pro tunc process. An applicant who adjusts status as a spouse of an asylee (AS-2 classification) is given the code “AS-7.” An applicant who adjusts status as a child of a principal asylee (AS-3 classification) is given the code “AS-8.” 


Classes of Applicants & Corresponding Codes of Admission

Applicant

Code of Admission

Asylee (Principal)

AS6

Spouse of a Principal Asylee (AS6)

AS7

Child of a Principal Asylee (AS6)

AS8


The officer must ensure that the asylee’s new Class of Admission (COA) information is updated in the appropriate electronic systems, so that the applicant will receive a permanent resident card. After completion, cases are routed to the National Records Center (NRC).


2. Denials


If an applicant fails to establish eligibility for adjustment under this section, the application will be denied. The officer must provide the applicant with a written notice specifying the reasons for denial in clear language the applicant can understand. While there is no appeal from denial of this type of case, a motion to reopen may be considered if timely filed within 30 days of the date of the denial and received before removal proceedings are instituted. 


An applicant may also renew the application for adjustment while in removal proceedings before an Immigration Judge. If a motion includes a waiver, and the motion to reopen is granted, the officer must adjudicate the waiver before a final decision can be made on the adjustment application. 


If an officer denies the adjustment application due to ineligibility, improper filing, or abandonment of the application, the applicant should not be placed into removal proceedings and the applicant will still keep his or her asylum status. In certain instances, if officer denies the adjustment application because the applicant is inadmissible, the asylee may be placed into removal proceedings. 




Footnotes


1. [^] 

 See 8 CFR 209.2(e).

2. [^] 

 See INA 209(b).

3. [^] 

 USCIS uses the Form I-291 to inform the applicant of the denial of his or her application.




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