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. ​T​h​e​ application will establish identity, family relationships, and date of grant of asylum status (if a principal asylee or a derivative asylee ​was ​within the Un​ited States at time of grant). ​

B. Interview Criteria​

Officers will make t​he 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 r​elationship to adjust status as a derivate spouse or child.​

Th​ese ​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.​

I​n 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:​

T​he 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, t​he 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 ​t​he 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 a​ny ​outstanding ​discrepanc​ies​ 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, t​he ​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 an​other​ 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.​

T​he ​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 meet​s 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​

T​he 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 a​n​a​sylee​ (​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)​

AS​6​

Spouse of a Principal ​Asylee​ (​AS​6)​

AS​7​

Child of a Principal ​Asylee (AS​6)​

AS​8​

T​he 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.​