USCIS Policy Manual

VOLUME 7: ADJUSTMENT OF STATUS

PART .: GENERAL ADJUSTMENT OF STATUS POLICIES, GOALS, AND PROCEDURES

PART A: 245(A) ADJUSTMENT

PART B: 245(I) ADJUSTMENT

PART C: FAMILY-BASED ADJUSTMENT

PART D: EMPLOYMENT-BASED ADJUSTMENT

PART E: SPECIAL IMMIGRANT-BASED (EB-4) ADJUSTMENT

PART F: DIVERSITY VISA ADJUSTMENT

PART G: CRIMINAL OR TERRORIST INFORMANT-BASED ADJUSTMENT

PART H: VAWA-BASED ADJUSTMENT

PART I: TRAFFICKING VICTIM-BASED ADJUSTMENT

PART J: CRIME VICTIM-BASED ADJUSTMENT

PART K: REFUGEE ADJUSTMENT

Chapter 1: Purpose and Background 


A. Purpose


USCIS seeks to:


  • Resolve the refugee’s status after admission by ultimately determining whether the refugee is admissible to the United States as an immigrant; and


  • Provide qualified refugees a pathway to permanent residence as persons of special humanitarian concern to the United States.


B. Background


Before the Refugee Act of 1980, refugee admission policy was reactive and piecemeal as it grew in response to humanitarian crises and ethnic conflicts. The result was an assortment of laws and regulations that classified persons as refugees, conditional entrants, parolees, pre-parolees, escapees, evacuees, or asylum grantees. In many cases, the long-term resolution of these classifications was unclear. The Refugee Act of 1980 addressed these issues by providing a systematic procedure for the admission and permanent resettlement of refugees of special humanitarian concern to the United States.


Prior to the passage of the Refugee Act, a refugee in the United States had to wait two years to apply for adjustment of status. The refugee also had to show that he or she had fled (or stayed away from) any communist-dominated country or country within the Middle East and was unwilling or unable to return due to fear of persecution. 


Although the refugee was not required to show that he or she continued to meet the definition of a refugee, he or she adjusted status under section 245 of the Immigration and Nationality Act (INA), meaning that all of the inadmissibility grounds and bars to adjustment applied. The Refugee Act established, among other things, a uniform basis for permanent resettlement by amending the INA with the creation of section 209. 


Refugees are now required to apply to adjust status one year after being admitted as a refugee in order for USCIS to determine their admissibility to the United States as an immigrant.[1] See INA 209. Recognizing the unique and tenuous position of this population, Congress determined that certain grounds of inadmissibility would not apply at time of adjustment, while allowing for the possible waiver of other grounds. 


C. Legal Authorities


  • INA 209(a)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2095) – Adjustment of Status of Refugees

  • 8 CFR 209.1(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15531.html#0-0-0-11769) – Adjustment of Status of Refugees 

  • Pub. L. 96-212(http://www.gpo.gov/fdsys/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf) – Refugee Act of 1980

  • INA 101(a)(42)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101/0-0-0-195.html#0-0-0-959) – Definition of “refugee”


Chapter 2: Eligibility Requirements


By applying for adjustment of status, refugees are considered to be applying for inspection and admission to the United States as an immigrant. A refugee may adjust status to a lawful permanent resident if the refugee meets the following four requirements:


  • Admitted as a refugee under INA 207(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1625.html);

  • Physically present in the United States as a refugee for at least one year;

  • Refugee status has not been terminated; and

  • Permanent resident status has not already been acquired in the United States.


Applicants who fail to meet any of these requirements are statutorily ineligible for adjustment of status as a refugee.


A. Admitted as a Refugee under INA 207(http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1625.html)


Only applicants classified as refugees are eligible to adjust status as a refugee. Foreign nationals are generally classified as refugees through an approved Registration for Classification as Refugee (Form I-590), or an approved Asylee/Refugee Relative Petition (Form I-730(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=59cf8875d714d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) filed by a principal refugee. 


Refugees who are admitted to the United States through an approved Form I-590 are granted refugee status on the date they are admitted. Derivative refugees already in the United States when their relative petition (Form I-730) is approved are granted refugee status on the date the relative petition is approved. Derivative refugees outside the United States when their relative petition is approved are granted refugee status on the date they are admitted to the United States.


Immigrants Often Mistaken as Refugees:


Several classifications of immigrants are often mistaken for refugees. Many of these foreign nationals apply for adjustment of status as a refugee because they are not aware of the difference between their status and refugee status and may genuinely think they are refugees. These applicants are not eligible for adjustment of status under the refugee adjustment of status provisions. The most commonly encountered non-refugees are:


Asylees


Asylum may be granted to persons who are already in the United States and meet the definition of a refugee. Asylees are similar to refugees in many ways and in some cases may be confused with refugees. However, asylees gain status through either an Application for Asylum and for Withholding of Removal (Form I-589(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=de9814836a14d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) approved by an Asylum Office, Immigration Judge or the Board of Immigration Appeals, or by obtaining a visa through an approved relative petition for derivative asylees not included on the original asylum application. Asylees also may apply for adjustment of status under INA 209(http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2095), but through a process separate from the refugee adjustment process.[2] See Part M, Asylee Adjustment [7 USCIS-PM M] for details on adjustment of status for asylees. 

 

Lautenberg Parolees


As part of a program under the Lautenberg Amendment first introduced in 1990, certain foreign nationals from the former Soviet Union found to be ineligible for refugee status and whose applications are denied can be offered parole into the United States. These persons include, but are not necessarily limited to: Jews, Evangelical Christians, and Ukrainian Christians of the Orthodox and Roman Catholic denominations. Prior to mid-1994, Lautenberg parolees also included certain Vietnamese, Cambodians, and Laotians. Lautenberg parolees will usually have a denied Form I-590 and a travel letter, or an Arrival/Departure Record (Form I-94) showing that they were paroled into the United States. Lautenberg parolees may adjust status under section 599E of Pub. L. 101-167. 

 

Cuban Entrants


Since 1959, thousands of Cuban nationals have been paroled or admitted into the United States, many for humanitarian reasons but not as refugees. Although Cubans from the port of Mariel, Cuba, entered the United States shortly after the enactment of the Refugee Act of 1980 and may have documentation that seems to indicate refugee status, they do not adjust status as refugees. Such persons who have been physically present in the United States for one year can adjust status under the Cuban Adjustment Act of 1966. 

 

Indochinese Parolees


Throughout the 1980s and 1990s, thousands of citizens of Vietnam, Cambodia, and Laos were paroled into the United States under the Orderly Departure Program. Those who were paroled into the United States before October 1, 1997 and who were in the United States on that day may adjust status under section 586 of Pub. L. 106-429. 

 

Humanitarian Parolees 


Persons throughout the world who are facing a humanitarian crisis may be paroled into the United States. Sometimes these are extended family members of refugees or asylees who cannot be approved on a relative petition. They may be similar to Lautenberg parolees in that they do not qualify for refugee status but are facing some type of hardship. These foreign nationals generally have no means to adjust status based on their parole. 


Illegal Entrants


Some illegal entrants may consider themselves to be refugees because they are fleeing someone or some place. They may have applied for asylum status and been denied, entered the United States without inspection or overstayed their nonimmigrant visa. 


Iraqi and Afghan Translators


While some Iraqi and Afghan nationals are admitted as refugees, others may be admitted into the United States based on their service to the United States Armed Forces as a translator or interpreter (SI-1 classification). These foreign nationals are not refugees. The holder of a SI-1 classification will have an approved Petition for Amerasian, Widow(er), Or Special Immigrant (Form I-360(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=95be2c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) in order to apply for adjustment of status. Iraqi nationals and citizens with an approved Form I-360 do not adjust status as a refugee but rather as employment-based 4th preference special immigrants. 


Iraqi Employees Who Worked On or Behalf of the U.S. Government


Section 1244 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181) authorizes special immigrant status (SQ-1 classification) for Iraqi nationals who worked for or on behalf of the U.S. government in Iraq on or after March 20, 2003 to be admitted to the United States or adjust to immigrant status. These foreign nationals are not refugees. The holder of a SQ-1 classification must have an approved Form I-360(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=95be2c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD) in order to apply for adjustment of status. Iraqi nationals and citizens with an approved Form I-360 do not adjust status as a refugee but rather as employment-based 4th preference special immigrants. 


Afghan Allies


The Afghan Allies Protection Act of 2009 authorizes special immigrant status (SQ-1 classification) for Afghan nationals who worked for or on behalf of the U.S. government to be admitted to the United States or adjust to immigrant status. These foreign nationals are not refugees. The holder of the SQ-1 classification must have an approved Form I-360(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=95be2c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD) in order to apply for adjustment of status. Iraqi nationals and citizens with an approved Form I-360 do not adjust status as a refugee but rather as employment-based 4th preference special immigrants. 


Aliens Erroneously Admitted to the United States as Refugees


Sometimes a foreign national may be erroneously admitted as a refugee as indicated on their admission document (Form I-94). This is most common with derivative asylees, humanitarian parolees, and sometimes Lautenberg parolees. The fact that a person was admitted erroneously as a refugee does not make that person eligible to adjust status under the refugee adjustment of status provisions.[3]  See INA 209(a). As is the case in all adjustment of status applications, an officer must determine if the person was indeed admitted under the proper classification prior to making a decision on the adjustment application.[4] See Matter of Khan, 14 I&N Dec. 122 (BIA 1972). This applies in general to any immigrant who was admitted under the wrong status or was ineligible for admission under that status.


B. Physical Presence in the United States for at Least One Year


Refugees are required to have one year of physical presence in the United States at time of filing the application in order to be eligible to adjust status. For applicants who gained derivative refugee status through an approved relative petition and who were in the United States when the petition was approved, the one year period begins on the date the relative petition was approved. 


Because the requirement is one year of physical presence and not just one year from the date of admission as a refugee, only time spent in the United States counts toward this requirement. Applicants who travel outside the United States within their first year of residence as a refugee will not meet this requirement until the cumulative amount of time spent in the United States is at least one year.


C. Refugee Status Has Not Been Terminated


An applicant whose refugee status has been terminated is not eligible to adjust status. Evidence of termination of status in the applicant’s A-file will generally include a notice of termination of status, a Notice To Appear, and EOIR court records. Other evidence may include a notice of intent to terminate status, interview notes, and assessment notes. See Chapter 6 of this Part for more information on termination of status.


D. Permanent Resident Status Has Not Already Been Acquired in the United States


Refugees who have already acquired permanent resident status are not eligible to adjust status. Evidence of permanent resident status will most often be an approved adjustment application already in the applicant’s A-file. 


Refugees who sought adjustment of status prior to July 1998 applied through the local field office. These refugees will usually have only an approved Memorandum of Creation of Record of Lawful Permanent Residence (Form I-181) in their A-file as evidence of their adjustment of status. Refugees who adjusted status between 1998 and 2005 will usually have both an approved adjustment of status application (Form I-485(http://www.uscis.gov/i-485)) and an approved Form I-181 in their A-file.


Refugees who adjusted status from 2005 to the present will usually have only an approved adjustment of status application in their A-file. The Form I-181 is no longer in use.


E. Others Allowed to Apply for Adjustment under INA 209(http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2095) by Statute or Regulation



Historically, 
USCIS has granted other foreign nationals status that is similar to the current refugee and asylee categories. Although most of these persons have already applied for adjustment of status due to the passage of time, an officer may occasionally encounter such cases. These applicants are eligible to apply for adjustment of status under INA 209(http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2095) once certain conditions have been met.


1. Pre-April 1, 1980 Conditional Entrants 

 

Prior to April 1, 1980, the INA allowed persons from communist or communist-dominated countries and persons from countries in the general area of the Middle East to be admitted as “conditional entrants” under what was then known as the seventh preference category. Conditional entrants were allowed to become permanent residents after a specified period (initially two years, later reduced to one year) in the United States. 



The conditional entrant provisions were generally repealed by the Refugee Act of 1980, except that the repeal did not apply to persons who were granted conditional entry prior to April 1, 1980. Accordingly, any conditional entrant encountered today who is seeking LPR status should be treated in the same fashion as a refugee seeking permanent residence, except that the correct adjustment code is “P7-5.” 


2. Persons Paroled as Refugees Prior to April 1, 1980 



The Refugee Act also allowed foreign nationals paroled into the United States as refugees prior to April 1, 1980 to adjust their status if they were eligible for the benefits of section 5 of Pub. L. 95-412. The law states in part that “Notwithstanding any other provision of law, any refugee, not otherwise eligible for retroactive adjustment of status, who was or is paroled into the United States by the Attorney General pursuant to INA 212(d)(5)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006/0-0-0-2364.html#0-0-0-1407) before April 1, 1980, shall have his status adjusted pursuant to the provisions of INA 203(g)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1083/0-0-0-1159.html#0-0-0-1671) and (h)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1083/0-0-0-1159.html#0-0-0-1675) of the Act.” 



Therefore, a person paroled into the United States as a refugee prior to April 1, 1980, may have his or her status adjusted to lawful permanent resident, if otherwise eligible. 


3. Persons Paroled as Refugees Between April 1, 1980 and May 18, 1980 



Some foreign nationals continued to be paroled into the United States for a few weeks after April 1, 1980. They are to be treated the same as persons admitted under the former seventh preference (conditional entrant) category.[5] See 8 CFR 209.1(a)(2). Even though conditional entrance or parole of refugees was not permitted after passage of the Refugee Act, legacy INS may have done so in error. Since the adjustment of status of such a person is not covered by the INA or current regulations, the officer should contact the Refugee Affairs Division at the Refugee, Asylum, and International Operations Directorate (RAIO) for further guidance. 


F. Special Considerations for Refugee Adjustment of Status Applicants


Officers must be aware of the following provisions affecting refugees applying for adjustment of status:


  • Refugees do not have to continue to meet the definition of “refugee” within the meaning of the INA after admission and may still adjust status as a refugee.


  • Derivative refugees accompanying or following to join the principal refugee do not have to wait until the principal refugee has adjusted status to adjust their own status. They are considered refugees in their own right once admitted to the United States.


  • Derivative refugees do not have to maintain their familial relationship to the principal refugee after admission to the United States to be eligible to adjust status. 


  • There is no bar to adjustment of status for refugees who have firmly resettled in a foreign country subsequent to being admitted to the United States as refugees.


  • There is no bar to adjustment of status for refugees who previously had the status of an exchange nonimmigrant under INA 101(a)(15)(J)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101.html#0-0-0-687) and who had been subject to the foreign resident requirement under INA 212(e)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006/0-0-0-2364.html#0-0-0-2803), even if the foreign resident requirement was never met. In this case, no waiver is necessary.


1. Relationship Issues


While reviewing a case, an officer may become aware that, at the time a derivative refugee was admitted to the United States, he or she did not possess the requisite relationship to the principal refugee and as such was not entitled to derivative refugee status at time of admission. In certain instances, these applicants may be found inadmissible for fraud or misrepresentation because they were questioned about their marital status and familial relationships during the Form I-590 interview or interview for Form I-730(http://www.uscis.gov/i-730) derivative refugee status, or at the port of entry.


Although the derivative refugees in each of the following examples have been admitted to the United States as refugees, they were not eligible for that status when they were admitted because their status was dependent upon their relationship to the principal, and the relationship did not exist or no longer existed at the time of admission.[6] See Matter of Khan, 14 I&N Dec. 122 (BIA 1972). The most common scenarios are:


Pre-Departure Marriages


It is not uncommon for some derivative refugee children to marry prior to admission as a refugee to the United States. The marriage severs their familial relationship to the principal refugee. In February 2003, USCIS officers began requiring derivative children of the principal refugee (RE-3 classification) to sign an RE-3 Notice on Pre-Departure Marriage & Declaration statement. 


By signing the notice, RE-3 derivatives acknowledge that they will be ineligible for admission as a derivative refugee if they marry prior to being admitted to the United States. Refugee derivatives who sign this notice and who marry prior to being admitted to the United States as a refugee may also be found inadmissible for fraud or misrepresentation should they present themselves as unmarried children. A pre-departure change to marital status will render the applicant ineligible for admission as a derivative refugee regardless of whether the foreign national signs an RE-3 Notice.


Pre-Departure Divorces


A derivative spouse (RE-2 classification) of a refugee who divorces the principal refugee prior to seeking admission as a refugee to the United States is ineligible for admission as a derivative refugee. Officers should note that if USCIS did not ask the derivative spouse about their marital status or eligibility at the time of admission, the foreign national may not have committed an act of fraud or misrepresentation.


Non-Existent or Fraudulent Relationships


Some derivative refugees may be untruthful on the refugee application about their marital status. A derivative spouse (RE-2) may not have been legally married to the principal applicant when the refugee application was filed, although they may have publicly presented themselves as husband and wife. A derivative child (RE-3) may have been married when the application was filed but claimed to be single. Additionally, applicants who have no relationship to the principal could claim a relationship as either a spouse or child, and likewise the principal may claim a relationship to them in order to gain access to the U.S. Refugee Admissions Program. 


In all three scenarios, refugee adjustment allows most grounds of inadmissibility to be waived for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Many applicants who may be found inadmissible due to relationship fraud or ineligibility due to not having the requisite relationship at time of admission may be deserving of a waiver of that ground, especially those who have or had a legitimate familial relationship or common law relationship to the principal. An officer should use their discretion when granting these waivers and should consider the totality of the circumstances, including whether or not the derivative has had an actual relationship to the principal. 


2. Child Status Protection Act Provisions


As of August 6, 2002, any derivative refugee child who had a pending relative petition (Form I-730(http://www.uscis.gov/i-730)), adjustment application (Form I-485(http://www.uscis.gov/i-485)), or refugee application (Form I-590) on or after that date has had his or her age “frozen” as of the date the petition or application was filed. This was to allow the foreign national’s continued classification as a child for purposes of both refugee classification and adjustment of status. Any person who aged out prior to that date is not eligible for continuing classification as a child unless one of these applications was pending on August 6, 2002. 


An unmarried child who is under 21 on the day the principal refugee files the refugee application will remain eligible to be classified as a child as long as he or she was listed on the parent’s refugee application prior to adjudication. In determining continuing eligibility as a derivative refugee child for adjustment, the officer need only verify that the derivative applicant’s age was under 21 at the time the refugee application or the relative petition was filed, whichever form first listed the child.


Chapter 3: Admissibility and Waiver Requirements


Refugees must be admissible to the United States as an immigrant at the time adjustment of status is granted. However, an officer must remember that applicants who were admitted to the United States as refugees were subject to grounds of inadmissibility at the time of admission.


Therefore, any information contained in the A-file known to the refugee officer, consular officer, or inspections officer at the time of admission is generally not used to find the refugee inadmissible at the time of adjustment, unless the law or interpretation of the law has changed subsequent to admission, or a clear error was made by the original adjudicating officer.[7] For example, a ground of inadmissibility was waived for which no waiver was available, or a national security issue was not properly addressed.


An officer makes a determination regarding the refugee’s admissibility at the time of admission and the officer adjudicating the adjustment of status application should give deference to this prior determination. 


A. Exemptions


The following grounds of inadmissibility do not apply to refugees adjusting status:


  • Public Charge – INA 212(a)(4)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2483) 


  • Labor Certification and Qualifications for Certain Immigrants – INA 212(a)(5)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2509)


  • Documentation Requirements for Immigrants – INA 212(a)(7)(A)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2297)


B. Applicable Inadmissibility Grounds


The following grounds of inadmissibility apply to refugees adjusting status: 


  • Health-Related – INA 212(a)(1)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2301)


  • Crime-Related – INA 212(a)(2)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-1203)


  • Security-Related – INA 212(a)(3)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-1241)


  • Illegal Entrants and Immigration Violators – INA 212(a)(6)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2533)


  • Ineligibility for Citizenship – INA 212(a)(8)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2609)


  • Foreign Nationals Previously Removed – INA 212(a)(9)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2615)


  • Practicing Polygamists, Guardians Required to Accompany Helpless Persons, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation – INA 212(a)(10)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2677)


Health-Related Considerations


Generally, if an officer waives the grounds of inadmissibility at the time of the refugee admission, the waiver carries forward to the adjustment application. A notable exception would be for waivers of medical inadmissibility for Class A medical conditions. In these instances, the waiver does not carry through to adjustment and the applicant must submit to a new medical exam to determine whether the Class A medical condition has been resolved.


C. Inadmissibility Grounds that May Not Be Waived


While waivers are generally available for most of the grounds listed in Section B, Applicable Inadmissibility Grounds,[8] See 7 USCIS-PM L.3(B). the following grounds of inadmissibility cannot be waived:


  • Controlled Substance Traffickers  INA 212(a)(2)(C)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2347)


  • Espionage; Sabotage; Illegal Export of Goods, Technology, or Sensitive Information; Unlawful Overthrow or Opposition to U.S. Government – INA 212(a)(3)(A)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2389)


  • Terrorist Activities  INA 212 (a)(3)(B)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2401)


  • Adverse Foreign Policy Impact  INA 212(a)(3)(C)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2451)


  • Participants in Nazi Persecutions or Genocide  INA 212(a)(3)(E)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2471)


An officer should deny the adjustment application if no waiver is available due to the type of inadmissibility found. 


National Security Issues


In the event that an adjudicating officer identifies at any stage one or more national security indicator(s) or concerns unknown at the time of the refugee grant, an officer should refer to USCIS guidance on disposition of national security cases. An officer should also follow current USCIS instructions on cases that involve Terrorist Related Inadmissibility Ground (TRIG) issues for disposition of the case or see their supervisor for questions on material support to terrorism. 


Unless sent specifically to a field office for resolution of a TRIG issue, an officer should return any refugee adjustment case with unresolved TRIG issues to the Nebraska Service Center for resolution. 


D. Waivers[9] See Adjudicator’s Field Manual (AFM) Chapter 41.6, Waivers of Inadmissibility for Refugees and Asylees for more information on waivers of inadmissibility for refugees under INA 209(c).


All grounds of inadmissibility listed at Section B, Applicable Inadmissibility Grounds[10] See 7 USCIS-PM L.3(B). are subject to waiver, if the applicant can establish he or she qualifies for a waiver. An officer may have waived a refugee adjustment applicant’s ground of inadmissibility for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. This is a more generous waiver provision than what is used for general adjustments, which typically require an applicant to prove extreme hardship. 


In adjudicating a discretionary waiver application for refugee adjustment, an officer must balance the humanitarian, family unity, or public interest considerations with the seriousness of the offense that rendered the applicant inadmissible. In making this determination, an officer should recognize that the applicant has already established either past persecution or a well-founded fear of future persecution, which is an extremely strong positive discretionary factor. Therefore, unless there are even stronger negative factors that outweigh the positive ones, the waiver application should generally be approved.


Often, waiver applications for refugees are handled overseas before the foreign national is approved for the refugee classification. However, if a ground of inadmissibility arose after the applicant’s approval for the refugee classification, or if it was not known to the officer who approved the refugee classification, the applicant may seek a waiver. The officer should adjudicate the waiver as a part of the refugee adjustment process. The applicant generally seeks a waiver through the filing of an Application by Refugee for Waiver of Grounds of Excludability (Form I-602(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)).


When an officer determines that an applicant is inadmissible and a waiver is available, an officer may grant the waiver without requiring submission of a Form I-602(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD), if:



If an officer determines that the applicant does not need to file a Form I-602(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD), the officer should indicate that they have waived the inadmissibility by annotating the adjustment application to reflect this action. An officer may use a written annotation, stamp, or pre-printed label to indicate the specific inadmissibility ground that they are waiving. 


The officer’s signature and approval stamp on the adjustment application also serves as the signature and approval of the waiver. Waivers granted because the vaccinations were not medically appropriate do not require a waiver annotation on the adjustment application or the medical record (Form I-693(http://www.uscis.gov/i-693)).[12] See INA 212(g)(2)(B). All others do require an annotation. 


In cases that require a Form I-602(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)there is no need for a separate waiver approval notice because the approval of the adjustment application will indicate the approval of the waiver application. The officer should simply stamp the waiver application as approved, check the block labeled “Waiver of Grounds of Inadmissibility is Granted,” and make the appropriate endorsements in the space labeled “Basis For Favorable Action.” 



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 
on Form I-602(http://www.uscis.gov/i-602) labeled “Waiver of Grounds of Inadmissibility is Denied,” and write “See Form I-291[13] USCIS uses the Form I-291 to notify the applicant that his or her application has been denied. in the space labeled “Reasons.” 


The denial of the waiver should be fully discussed in the denial of the adjustment application. While there is no appeal from the denial of the Form I-602(http://www.uscis.gov/i-602), the immigration judge may consider the waiver application de novo when he or she considers the renewed adjustment application during removal proceedings.

 

Chapter 4: Documentation and Evidence


The officer should review the following documentation or evidence to determine the refugee’s eligibility for adjustment:


A. Required Documentation and Evidence


  • Application to Register Permanent Residence or Adjust Status (Form I-485(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3faf2c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD))


Each applicant must file a separate application regardless of whether he or she is a principal or a derivative refugee. There is no fee required for refugees to file this form.


  • Biographic Information Sheet (Form G-325A(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d7c84154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD))


This form is required for every applicant who is 14 years of age or older at the time of filing. The officer must check the Form G-325A for additional aliases requiring a systems query.


  • Proof of refugee status 


An officer must review the contents of the A-file for proof of refugee status. The A-file should contain an approved refugee application (Form I-590) with proper endorsement, or an approved relative petition (Form I-730(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=59cf8875d714d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)). Although applicants may submit an Arrival/Departure Record (Form I-94), or a notice showing an approved relative petition with their application, these documents must always be cross-checked with the evidence in the A-file to confirm the applicant’s refugee status.


  • Evidence of one-year physical presence in the United States 


An officer can generally verify physical presence by reviewing of the “date of last arrival” and “place of last entry into the United States” blocks on the adjustment application, the information listed on the G-325A and the information within USCIS systems, such as the Central Index System.


In addition, the officer should review the date of admission on either a Form I-94 or Form I-590 with the date of filing of the adjustment application. If the evidence lends reasonable doubt as to the time periods the applicant has spent in the United States, the officer may request additional information verifying physical presence.


  • Two (2) passport-style photos, taken no earlier than 30 days prior to filing


  • Report of Medical Examination and Vaccination Record (Form I-693(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=eb1f3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD))


Typically a complete medical examination record is not needed by refugees. A refugee who already received a medical examination prior to admission does not need to repeat the entire medical examination unless the original examination revealed a Class A medical condition. However, the refugee must establish compliance with the vaccination requirements at the time of adjustment of status. The refugee must submit the vaccination record portion completed by a designated civil surgeon. State and local health departments may qualify for a blanket designation as civil surgeons for the purpose of completing the vaccination record for refugees applying for adjustment of status.[14] For more information, see Volume 8, Admissibility, Part C, Civil Surgeon Designation and Revocation, Chapter 3, Blanket Civil Surgeon Designation, Section A, Blanket Designation of State and Local Health Departments [8 USCIS-PM C.3(A)]. 


  • Certified copies of arrest/court records (if applicable) 


An applicant must submit an original official statement by the arresting agency or a certified court order for all arrests, detentions or convictions, regardless of whether the arrest, detention or conviction occurred in the United States or elsewhere in the world.


  • Application by Refugee for Waiver of Grounds of Excludability (Form I-602(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) (if applicable)


  • Health and Human Services Statistical Data for Refugee/Asylee Adjusting Status (Form I-643(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=471c3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD))  


Although this form is required at time of filing, it will generally be removed during pre-processing for submission to the Department of Health and Human Services Office of Refugee Resettlement prior to an officer reviewing the Form I-485(http://www.uscis.gov/i-485). Therefore, the officer will generally be unaware if the form was filed and should not issue an RFE if it is missing from the file.


B. Supplemental Documentation


Supplemental documentation is often submitted by the applicant but is not required. This may include the following: 


  • Arrival/Departure Document (Form I-94), with appropriate endorsement


  • Birth certificate, when obtainable 


See the Department of State Reciprocity Tables(http://travel.state.gov/visa/fees/fees_3272.html) for information on the availability of identity documents in particular countries and during specific time periods. There may be other instances in which a birth certificate is unobtainable because of country conditions or personal circumstances.


In these instances, affidavits may be submitted to establish the applicant’s identity. An officer may also review the A-file to check for a birth certificate that the applicant may have submitted with the refugee application or for other evidence submitted at the time of the interview to establish the applicant’s identity. 


  • Copy of passport(s), when obtainable 


In most instances a refugee will be unable to produce of copy of his or her passport. There may be other instances in which a passport is unobtainable due to country conditions, personal circumstances, or the fact that the applicant may have never possessed a passport. In these cases, a copy of a passport is not required and an officer may use evidence in the A-file to verify the applicant’s identity.


An officer should review any supplemental documentation submitted to ensure it is consistent with the documentation contained in the A-file. Since identity is already established during the adjudication of the refugee application, a birth certificate or passport is not required at the time of adjustment. 


Nevertheless, if the applicant submits any of these documents, the officer must address and resolve any discrepancies at the time of adjudication. In all cases, an officer should give considerable weight to the documentation contained in the refugee application or with the relative petition, as this information was previously vetted at the time of the refugee status interview or relative petition approval. 


C. Documentation Already Contained in the A-File


The refugee application, (generally referred to as the “refugee travel packet”), should already be included in the applicant’s A-file, including all of the forms, evidence, and officer notes that were part of the original application for refugee status. The most important document for an officer to review is either the refugee application or the relative petition, which provides proof of status and establishes identity (with attached photo) as well as citizenship, since most refugees will not have a birth certificate or a passport. 


Another important document in the refugee travel packet is the Medical Examination of Applicants for United States Visas (Form DS-2053, formerly numbered OF-157). An officer does not need to be aware of the overseas medical examination requirements, but should realize that the overseas medical examination requirements are not the same as the requirements for medical examinations performed in the United States. Refugees are generally not required to complete a new medical exam in the United States if a medical exam was performed overseas and there were no Class A conditions. 


D. Unavailable or Missing Documentation


When a refugee flees the country of persecution, he or she may not be able to obtain any documentation issued by a civil authority as proof of identity or of a familial relationship. At the time of the refugee status interview, an officer reviews many documents and affidavits and solicits testimony when seeking to establish a refugee’s personal and family identity. Any available documents submitted at the time of the refugee status interview should be contained within the A-file. 


An officer may rely on the documents contained in the original refugee travel packet to verify identity at the time of adjustment. While it is not necessary to request the applicant’s birth certificate or passport as proof of identity, an officer should review any documentation establishing identity submitted with the adjustment application. 


Additionally, an officer should compare photos submitted with the application to the photos in the refugee packet. If an officer is unable to establish an applicant’s identity due to discrepancies between the documentation the applicant submitted and information contained in the original refugee packet, then the officer should forward the file to the field office with jurisdiction over the case for interview and resolution.


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 should 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, admissibility 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.[15] 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 field office for interview will be made on a case-by-case basisan 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’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 necessary to determine if a waiver is appropriate.


C. Beneficiaries Applying for Adjustment without 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(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=59cf8875d714d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)). When proceeding from abroad, the derivative beneficiary is required to undergo an overseas 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 fully 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 maintains the confidentiality of the principal’s refugee application. 


D. Requests to Change Name or Date of Birth


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


The officer should be aware that name changes may occur after the refugee interview, such as in the case of a legal adoption, marriage or 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 parents.


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)(http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2095). 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 should be placed in removal proceedings, the local Enforcement and Removal Operations Field Office (ERO) will promptly reach out to its corresponding USCIS Field Office Director 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 an 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 relocated 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 proceed. 


G. Decision


1. Approval


If the adjustment application is properly filed, the 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


An applicant who has been granted refugee status in his or her own right (RE-1, classification as a principal) is adjusted 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 derivative was granted refugee status. The RE-6 code is reserved solely for the principal refugee to ensure there is no confusion regarding the eligibility to file a relative petition.


An 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


The 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 card. 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(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-5684.html).[17] 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.


Chapter 6: Termination of Status and Notice to Appear Considerations


A. Basis


Changed country conditions in the refugee’s country of nationality do not justify termination of refugee status. The sole basis for an officer to terminate the status of a foreign national admitted to the United States as a refugee is if the officer determinates that the foreign national was not a refugee within the meaning of the INA at the time of his or her admission to the United States. In order to make this determination, an officer must be familiar with how the term “refugee” is defined.[18] See INA 207(c)(4) and 8 CFR 207.9. 


This determination standard applies solely to principal refugees and never to derivative refugees. Derivative refugees are not required to prove past persecution or a well-founded fear of future persecution. However, an officer may terminate a derivative refugee’s status if the principal’s status is terminated. 


The statute and regulations do not require the formal termination of refugee status prior to removal proceedings where the refugee has been inspected and examined for adjustment of status, has been found inadmissible, and has not been granted a waiver of inadmissibility. Prior to being placed in removal proceedings, the applicant may first be given an opportunity to apply for a discretionary waiver of inadmissibility grounds.


If USCIS denies the adjustment application and/or waiver application, the applicant may also renew his or her application for adjustment or waiver of inadmissibility before an Immigration Judge (IJ). The applicant may also apply for asylum or any other relief from removal before an IJ. 


The officer should prepare a Notice To Appear (NTA) if the refugee is inadmissible. Upon written notice of the adjustment application’s denial, the applicant is no longer considered an admitted alien and should be charged with inadmissibility grounds under INA 212(a)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-1201). However, if the officer is denying the adjustment application on other grounds (e.g., abandonment), the officer should not issue a NTA, since the applicant has not been found inadmissible.


Alternatively, USCIS may place a person who was admitted as a refugee directly in removal proceedings, without termination of refugee status, on the basis of any applicable charges under INA 237(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-5684.html) without the adjudication of an adjustment application.


B. Procedures


USCIS conducts terminations of refugee status.[19] See 8 CFR 207.9. If an officer concludes after reviewing a refugee’s A-file that the facts merit termination of the principal refugee’s status, the officer will follow the procedures below, depending on where the case is located:


1. Cases Located at Service Centers


All evidence relevant to a possible termination of refugee status should be reviewed by a supervisor and then scanned and forwarded to the Refugee Affairs Division (RAD) within the Refugee, Asylum, and International Operations Directorate (RAIO) for review. RAD will review the information and send a response back with a recommendation on how to proceed. If RAD recommends relocation of the case for possible termination, the principal’s file and all derivative files, along with a copy of RAD’s recommendation, should be relocated to the District or Field Office to interview the refugee for possible termination of status. 


2. Cases Located at Field Offices


All evidence relevant to a possible termination of refugee status should be reviewed by a supervisor and then scanned and forwarded along with an explanation detailing why the officer believes termination may be appropriate to HQ FOD through appropriate channels. This evidence will be forwarded for review to the Refugee Affairs Division (RAD). RAD will review the information and send a response back with a recommendation on how to proceed.


If RAD recommends possible termination, all family members’ files should be requested. Once all family files have been received, the Field Office should interview the refugee for possible termination of status. If RAD does not recommend termination, no interview is needed for Notice of Intent to Terminate purposes and the officer should resume adjudication of the adjustment application.



PART L: ASYLEE ADJUSTMENT

Chapter 1: Purpose and Background

A. Purpose


U.S. Citizenship and Immigration Services (USCIS) seeks to:


  • Resolve the asylee’s status by ultimately determining whether he or she is admissible to the United States as an immigrant; and


  • Provide qualified asylees a pathway to permanent residence as persons of special humanitarian concern to the United States.


B. Background


The Refugee Act of 1980 not only provided for the admission and adjustment of status of refugees but also established procedures for foreign nationals to seek asylum. Prior to the Refugee Act, there was no mechanism for someone in the United States to apply for protection under the Refugee Convention. The Refugee Act required the establishment of a procedure for a foreign national who meets the definition of a refugee to apply for and be granted asylum if physically present in the United States regardless of the person’s immigration status. 


The Refugee Act provided for the adjustment of status of asylees to permanent residents. Unlike refugees, asylees are not required to apply for adjustment of status one year after receiving asylum. Instead, an asylee may apply for adjustment of status after accruing one year of physical presence after receiving asylum status. The asylee is not required to apply within a specific time frame.


Although the Refugee Act exempted asylees from the worldwide annual limitations on immigrants, the law placed a ceiling of 5,000 on the number of asylees who could adjust to permanent resident status each year. The Immigration Act of 1990 increased the annual ceiling to 10,000 and waived the annual limit for those asylees who met the required one-year physical presence requirement and filed for adjustment of status on or before June 1, 1990. In 2005, the REAL ID Act[20] See the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. 109-13 (May 11, 2005). permanently eliminated the annual cap on the number of asylees allowed to adjust status.


C. Legal Authority


  • INA 209(b)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2093) – Adjustment of Status of Refugees

  • 8 CFR 209.2(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15551.html#0-0-0-11771) – Adjustment of Status of Alien Granted Asylum

  • Pub. L. 96-212(http://www.gpo.gov/fdsys/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf) – The Refugee Act of 1980


Chapter 2: Eligibility Requirements


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[21] 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 Presence in the United States of at Least One Year


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(http://www.uscis.gov/i-730)) or the principal asylee’s asylum application (Form I-589(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=de9814836a14d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)), 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.


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

  • Political Opinion


If an applicant no longer meets the definition of a refugee,[22] 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.[23] 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 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.[24] 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.[25] 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


Divorced Spouse


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.


Married Child


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(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=59cf8875d714d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)), adjustment application (Form I-485(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3faf2c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) or principal’s asylum application (Form I-589(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=de9814836a14d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) 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.[26] 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(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=59cf8875d714d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) 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.[27] 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. 


D. Not Firmly Resettled in Any Foreign Country


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.


Chapter 3: Admissibility and Waiver Requirements


An asylee adjustment applicant must be admissible at the time USCIS grants the adjustment of status. Because an asylee is not subject to admissibility grounds at the time of the asylum grant, the adjudication of the adjustment application may be the first instance that inadmissibility grounds are considered. The applicants may be found inadmissible based on any information in the A-file or submitted with the adjustment application or through security checks. 


A. Exemptions


The following grounds of inadmissibility do not apply to asylees adjusting status:


  • Public Charge – INA 212(a)(4)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2483)


  • Labor Certification and Qualifications for Certain Immigrants – INA 212(a)(5)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2509)


  • Documentation Requirements for Immigrants – INA 212(a)(7)(A)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2581)


B. Applicable Inadmissibility Grounds


The following grounds of inadmissibility apply to asylees adjusting status:


  • Health-Related – INA 212(a)(1)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2301)


  • Crime-Related – INA 212(a)(2)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-1203)


  • Security-Related – INA 212 (a)(3)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-1241)


  • Illegal Entrants and Immigration Violators – INA 212(a)(6)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2533) 


  • Ineligibility for Citizenship – INA 212(a)(8)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2609) 


  • Foreign Nationals Previously Removed – INA 212(a)(9)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2615)


  • Practicing Polygamists, Guardians Required to Accompany Helpless Persons, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation – INA 212(a)(10)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2677) 


1. Health-Related Considerations


In some cases, a derivative asylee who had a relative petition (Form I-730(http://www.uscis.gov/i-730)) processed overseas may have had a Class A medical condition that was waived for purposes of admission as an asylee. In these instances, the waiver does not carry through to adjustment and the applicant must submit to a new medical examination to determine whether the Class A medical condition has been resolved.


2. Unlawful Presence Considerations


An unlawful presence exception applies during the period of time in which the asylee had a bona fide, pending asylum application. The time period that the applicant’s bona fide asylum application was pending should not be included in any unlawful presence calculation,[28] See INA 212(a)(9)(B). provided the applicant was not employed without authorization during such time period. Unauthorized employment would disqualify the asylee from this exception.[29] See INA 212(a)(9)(B)(iii)(II). 


While departures from the United States may trigger an unlawful presence bar, an officer may consider a waiver for unlawful presence either through submission of a waiver application (Form I-602(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)), or in conjunction with the adjustment of status application, in instances in which a waiver application is not requested. If the officer does not request a waiver application, the officer should notate any waiver granted on the adjustment of status application. However, the Board of Immigration Appeals held on April 17, 2012 that travel on advance parole for a pending adjustment applicant will not trigger the unlawful presence bar.[30] See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). 


C. Inadmissibility Grounds that May Not Be Waived 


While waivers are generally available for most of the grounds listed in Section B, Applicable Inadmissibility Grounds,[31] See 7 USCIS-PM M.3(B). the following grounds of inadmissibility cannot be waived:


  • Controlled Substance Traffickers – INA 212(a)(2)(C)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2347)


  • Espionage; Sabotage; Illegal Export of Goods, Technology, or Sensitive Information; Unlawful Overthrow or Opposition to U.S. Government – INA 212(a)(3)(A)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2389) 

  • Terrorist Activities – INA 212 (a)(3)(B)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2401) (Note: Exemptions for some of these grounds exist)

  • Adverse Foreign Policy Impact – INA 212(a)(3)(C)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2451)

      

  • Participants in Nazi Persecutions or Genocide – INA 212(a)(3)(E)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2471)


An officer should deny the adjustment application where no waiver or exemption is available due to the type of inadmissibility found. 


National Security Issues


In the event that the adjudicating officer identifies at any stage one or more national security indicator(s) or concerns unknown at the time of the grant of asylum, the officer should refer to USCIS guidance on disposition of national security cases. The officer should also follow current USCIS instructions on cases that involve terrorist related grounds of inadmissibility for disposition of the case or see their supervisor for questions.


Unless a case is sent specifically to a field office for resolution of Terrorist Related Inadmissibility Ground (TRIG) issues and final adjudication of the adjustment application, an officer should return any asylee adjustment case with unresolved TRIG issues to the originating Service Center for resolution.


D. Waivers


All grounds of inadmissibility listed at Section B, Applicable Inadmissibility Grounds[32] See 7 USCIS-PM M.3(B). are subject to waiver, if the applicant can establish he or she qualifies for a waiver.


An asylee adjustment applicant may have a ground of inadmissibility waived for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. This type of waiver does not require the applicant to prove extreme hardship.


In adjudicating a discretionary waiver application for asylee adjustment, an officer must balance the humanitarian, family unity, or public interest considerations with the seriousness of the offense or conduct that rendered the applicant inadmissible. In making this determination, an officer should recognize that the applicant has already established past or a well-founded fear of future persecution, which is an extremely strong positive discretionary factor.


Chapter 4: Documentation and Evidence


Officers should review the following documentation to determine an asylee’s eligibility to adjust status.


A. Required Documentation and Evidence


  • Form I-485(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3faf2c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD), Application to Register Permanent Residence or Adjust Status 


Each applicant must file a separate application with fee (unless granted a fee waiver) regardless of whether the applicant is a principal or derivative asylee. 


  • Form G-325A(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d7c84154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD), Biographic Information Sheet 


This form is required for every applicant who is 14 years of age or older at the time of filing. The officer must check the Form G-325A for additional aliases requiring a systems query. Also, the officer should review the “Applicant’s Last Address Outside the United States of More Than One Year” information. 


A country listed in this area other than the applicant’s country of persecution should be given consideration as potential evidence of resettlement in a country other than the United States by the applicant. However, an applicant is only 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.


  • Proof of asylum status 


An officer must review the contents of the A-file for proof of asylum status. The A-file should contain an approved asylum application (Form I-589(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=de9814836a14d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) or an approved relative petition (Form I-730(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=59cf8875d714d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)). Although an applicant may submit a Form I-94, Arrival/Departure Record, or an approval notice of the relative petition with their application, these documents must always be cross-checked with evidence in the A-file and in USCIS systems to confirm the applicant’s asylum status.


  • Evidence of one-year physical presence in the United States  


An officer can verify physical presence for a principal asylee by reviewing the date the asylum application was approved as indicated either on the approval letter from the Asylum Office, or on the order from the Immigration Judge, the Board of Immigration Appeals or a federal court. Officers may also check the information available in RAPS (the Refugees, Asylum and Parole System). 


An officer can generally verify physical presence for a derivative asylee by reviewing:


  • The “Date of Last Arrival” and “Place of Last Entry into the United States” blocks on the adjustment application (Form I-485(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3faf2c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)); 

  • The principal’s and derivative’s “Residence Information” listed on each Form G-325A(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d7c84154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD); and 

  • The admissions information contained in USCIS systems. 


Officers should also review the date of admission as an asylee found on a Form I-94 Arrival/Departure Document against the filing date of the adjustment application. 


An officer should review any requests for travel documents or advance parole prior to the filing of the adjustment application. If there is doubt as to the applicant’s time periods in the United States, the officer may request additional information verifying physical presence. This may include pay stubs or employment records, school or medical records, rental and utility receipts, or any other documentation that supports proof of residence.


  • Two (2) Passport-Style Photos taken no earlier than 30 days prior to filing 


  • Form I-693(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=eb1f3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD), Report of Medical Examination and Vaccination Record 


A principal asylee is required to submit a complete medical examination and vaccination record. The examination must be completed by a USCIS designated civil surgeon, meet the standards of the medical examination, and include all required vaccinations as of the date of the examination. A complete medical examination is not required of all derivative asylees at time of adjustment. 


Derivative asylees that had a medical examination conducted overseas will not be required to undergo a new medical examination at the time of applying for adjustment of status if: 


  • The results of the overseas medical examination are contained in the A-file and no Class A condition was reported;

  • The asylee has applied for adjustment of status within one year of filing eligibility (i.e., within two years of the date of admission as an asylee derivative); and

  • There is no evidence in the A-file or testimony given at an interview to suggest that the asylee has acquired a Class A condition subsequent to his or her entry into the United States. 


Even if a complete new medical examination is not required, the applicant must still establish compliance with the vaccination requirements and submit the vaccination record portion of the medical examination record with the adjustment application. Unlike refugees, derivative asylees may not have their vaccination records completed by a health department with a blanket waiver as a civil surgeon. Blanket waivers for civil surgeons only extend to refugee vaccination certifications.[33] This is a determination made by the Department of Health and Human Services, Centers for Disease Control and Prevention.


  • Certified Copies of Arrest/Court Records (if applicable)

  

An applicant must submit an original official statement by the arresting agency or certified court order for all arrests, detentions or convictions.


  • Form I-602(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD), Application by Refugee for Waiver of Grounds of Excludability

  (if applicable) 


B. Supplemental Documentation and Evidence


Applicants often submit supplemental documentation although not required to do so. This may include: 


  • Form I-94, Arrival/Departure Document, with appropriate endorsement


  • Birth Certificate, when obtainable


See the Department of State Reciprocity Tables(http://travel.state.gov/visa/fees/fees_3272.html) for identity documents that cannot be obtained in particular countries and during specific time periods. There may be other instances in which a birth certificate is unobtainable because of country conditions or personal circumstances. In these instances, an applicant may submit affidavits to establish his or her identity. The officer may also review the A-file to check for a birth certificate that the applicant submitted with the asylum application or other evidence the applicant submitted at the time of the interview to establish his or her identity. 


  • Copy of Passport(s), when obtainable


In many instances, an asylee will be unable to produce a copy of his or her passport. There may be other instances in which a passport is unobtainable due to country conditions, personal circumstances or the simple fact that the applicant never possessed a passport. In these cases, a copy of a passport is not required and the officer may use evidence in the applicant’s A-file to verify his or her identity. The asylee’s date of birth and nationality are established during the asylum application or relative petition process.


The officer should review any supplemental documentation submitted by the applicant to ensure it is consistent with the documentation contained in the A-file. Since identity is already established during the asylum proceedings, a birth certificate or passport is not required at the time of adjustment. Nevertheless, if the applicant submits any of these documents, the officer must address and resolve any discrepancies at the time of adjudication. In all cases, considerable weight is given to the documentation contained in the asylum packet or with the relative petition. 


C. Documentation Already Contained in the A-File


The original asylum application should already be in a principal applicant’s A-file. A copy of the asylum application should also be found in the A-file of each derivative asylee who was in the United States at the time of asylum adjudication and was included on the asylum application. The relative petition should be in a derivative asylee’s A-file if the derivative asylee followed to join the principal and was not included on the original asylum application.


Each case file will contain all of the forms, evidence, and officer notes that were part of the application for asylum. The most important document for an officer to review is either the asylum application (Form I-589(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=de9814836a14d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) or the relative petition (Form I-730(http://www.uscis.gov/i-730)). Both provide proof of status and establish identity (with attached photo) as well as citizenship, since many asylees will not have a birth certificate or passport.


D. Unavailable or Missing Documentation


When an asylee flees the country of persecution, they may have been unable to obtain any documentation issued by a civil authority as proof of identity or of a familial relationship. At the time of the asylum interview, the asylum officer reviews a myriad of documents and affidavits and solicits testimony when seeking to establish an asylum-seeker’s personal and family identity. Any available documents submitted at the time of the asylum interview should be contained within the A-file.


An officer may rely on the documents contained in the A-file to verify the applicant’s identity at the time of adjustment. While it is not necessary to request the applicant’s birth certificate or passport as proof of identity, officers should review any documentation the applicant submits to establish identity. Additionally, photos the applicant submits should be compared to the photos in the A-file. If an officer is unable to establish an applicant’s identity due to discrepancies between the documentation the applicant submitted and the information contained in the A-file, then the file should be forwarded to the field office having jurisdiction over the case for interview and resolution.


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(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=de9814836a14d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD) or Form I-730(http://www.uscis.gov/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.[34] 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(http://www.uscis.gov/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(http://www.uscis.gov/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(http://www.uscis.gov/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(http://www.uscis.gov/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(http://www.uscis.gov/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.[35] 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(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)), 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(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=58ea3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)) 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(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=eb1f3591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD)). 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”[36] 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(http://www.uscis.gov/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(http://www.uscis.gov/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(http://www.uscis.gov/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(http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=de9814836a14d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD) or Form I-730(http://www.uscis.gov/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. 


Chapter 6: Termination of Status and Notice to Appear Considerations


On occasion, an officer reviewing the adjustment application will discover evidence that indicates the applicant was not eligible for asylum status at the time of asylum grant or is otherwise no longer eligible for asylum status. The officer should return the file to the Asylum Office for further review and potential termination of status. 


A. Basis


A grant of asylum does not convey a right to remain permanently in the United States and may be terminated.[37] See INA 208(c)(2). The date of the asylum grant guides the termination procedures.


Fraud in the application pertaining to eligibility for asylum at the time it was granted is grounds for termination regardless of the filing date.


1. Asylum Application Filed on or after April 1, 1997


USCIS may terminate asylum if USCIS determines that the applicant:


  • No longer meets the definition of a refugee; 


  • Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;


  • Constitutes a danger to the community of the United States, if convicted of a particularly serious crime;


  • Committed a serious nonpolitical crime outside the United States prior to arriving in the United States;


  • Is a danger to the security of the United States, including terrorist activity;


  • May be removed, to a country (other than the country of the applicant’s nationality or last habitual residence) in which the applicant’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, where the applicant is eligible to receive asylum or equivalent temporary protection;


  • Has voluntarily availed himself or herself of the protection of the country of nationality or last habitual residence by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; or


  • Has acquired a new nationality and enjoys the protection of the country of his new nationality.


2. Asylum Application Filed before April 1, 1997


USCIS may terminate the approval of asylum if USCIS determines that the applicant:


  • No longer has a well-founded fear of persecution due to changed country conditions;

  • Was convicted of a particularly serious crime or an aggravated felony;

  • Was firmly resettled in third country;

  • Can reasonably be regarded as a danger to the security of the United States; or

  • Is a persecutor or has engaged in terrorist activity.


B. Procedures


If an officer determines that termination is appropriate, he or she should forward the case to the appropriate asylum office with jurisdiction. The Asylum Office may only terminate asylum status if an Asylum Officer or a District Director granted the status. Asylum status granted by an Immigration Judge may not be terminated by USCIS since jurisdiction rests with the immigration court. In such cases, asylum offices should coordinate with the Refugee and Asylum Law Division at the Office of Chief Counsel, USCIS Headquarters.


For those cases within USCIS jurisdiction, a Notice of Intent to Terminate (NOIT) must be served on the applicant by the Asylum Office at least 30 days prior to an interview with an asylum officer. The NOIT must contain prima facie evidence supporting the termination. The grounds of termination must be proven by a preponderance of the evidence. The applicant has an opportunity to present evidence that he or she is still eligible for asylum. The officer must provide the applicant with written notice if asylum and/or related employment authorization are terminated.


An immigration judge may terminate a grant of asylum made under the jurisdiction of USCIS at any time after the applicant has been provided a Notice of Intent to Terminate (NOIT). A termination hearing may take place in conjunction with removal proceedings. 


If USICS terminates the applicant’s asylum status or the officer cannot approve the adjustment of status application due to the applicant’s inadmissibility, the officer should deny the application issue the applicant a Notice to Appear (NTA). The applicant should be placed in removal proceedings. The denial order should set forth all the reasons for the denial in clear language which can be understood by the applicant. There is no appeal from the denial of the application, but the alien may renew the application for adjustment in his or her removal proceedings before the Immigration Court.[38] See 8 CFR 209.2(e) and 8 CFR 209.2(f). 



PART M: LEGALIZATION

PART N: REGISTRATION

PART O: SPECIAL ADJUSTMENT PROGRAMS

PART P: POST ADJUDICATION OF ADJUSTMENT CASES

PART Q: RESCISSION OF LAWFUL PERMANENT RESIDENCE

PART R: ABANDONMENT OF LAWFUL PERMANENT RESIDENCE




Footnotes


1. [^] 

 See INA 209(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html).

2. [^] 

 See Part M, Asylee Adjustment [7 USCIS-PM M(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartM.html)for details on adjustment of status for asylees.


3. [^] 

  See INA 209(a).(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2095)

4. [^] 

 See Matter of Khan(http://www.justice.gov/eoir/vll/intdec/vol14/2143.pdf), 14 I&N Dec. 122 (BIA 1972). This applies in general to any immigrant who was admitted under the wrong status or was ineligible for admission under that status.


5. [^] 

 See 8 CFR 209.1(a)(2)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15531.html#0-0-0-11777).

6. [^] 

 See Matter of Khan(http://www.justice.gov/eoir/vll/intdec/vol14/2143.pdf), 14 I&N Dec. 122 (BIA 1972).

7. [^] 

 For example, a ground of inadmissibility was waived for which no waiver was available, or a national security issue was not properly addressed.

8. [^] 

 See 7 USCIS-PM L.3(B)(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartL-Chapter3.html#S-B).

9. [^] 

 See Adjudicator’s Field Manual (AFM) Chapter 41.6, Waivers of Inadmissibility for Refugees and Asylees (http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-18922/0-0-0-19061.html#0-0-0-629)for more information on waivers of inadmissibility for refugees under INA 209(c)(http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2095).

10. [^] 

 See 7 USCIS-PM L.3(B)(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartL-Chapter3.html#S-B).

11. [^] 

 See Health Related Considerations in Section B, Applicable Inadmissibility Grounds [7 USCIS-PM L.3(B)(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartL-Chapter3.html#S-B)]. 

12. [^] 

 See INA 212(g)(2)(B)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006/0-0-0-2364.html#0-0-0-2827).

13. [^] 

 USCIS uses the Form I-291 to notify the applicant that his or her application has been denied.

14. [^] 

 For more information, see Volume 8, AdmissibilityPart C, Civil Surgeon Designation and RevocationChapter 3, Blanket Civil Surgeon DesignationSection A, Blanket Designation of State and Local Health Departments [8 USCIS-PM C.3(A)(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartC-Chapter3.html#S-A)].

15. [^] 

 See 8 CFR 209.1(d)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15531.html#0-0-0-11783).

16. [^] 

 See Section C, Beneficiaries Applying for Adjustment without Prior Interview Overseas [7 USCIS-PM L.5(C)(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartL-Chapter5.html#S-C)].

17. [^] 

 See Matter of D-K-(http://www.justice.gov/eoir/vll/intdec/vol25/3747.pdf), 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-(http://www.justice.gov/eoir/vll/intdec/vol25/3747.pdf), 25 I&N Dec. 761, 761 (BIA 2012).

18. [^] 

 See INA 207(c)(4)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1625.html#0-0-0-1911) and 8 CFR 207.9(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-14843/0-0-0-14922.html#0-0-0-11311).

19. [^] 

 See 8 CFR 207.9(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-14843/0-0-0-14922.html#0-0-0-11311).

20. [^] 

 See the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. 109-13(http://www.gpo.gov/fdsys/pkg/PLAW-109publ13/html/PLAW-109publ13.htm) (May 11, 2005).

21. [^] 

 See 8 CFR 209.2(a)(2)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15551.html#0-0-0-11791).

22. [^] 

 See INA 101(a)(42)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101/0-0-0-195.html#0-0-0-959).

23. [^] 

 For more information, see Chapter 6, Termination of Status and Notice to Appear Considerations [7 USCIS-PM M.6(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartM-Chapter6.html)].

24. [^] 

 See INA 101(b)(1)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101/0-0-0-434.html).

25. [^] 

 See INA 204(l)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1272/0-0-0-1430.html#0-0-0-1869) and Adjudicator's Field Manual (AFM) Chapter 10.21(C), Receipting and Acceptance Processing(http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-1067/0-0-0-1095.html#0-0-0-1437) for additional guidance.

26. [^] 

 See INA 101(a)(42)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101/0-0-0-195.html#0-0-0-959).

27. [^] 

 See Matter of Khan(http://www.justice.gov/eoir/vll/intdec/vol14/2143.pdf), 14 I&N Dec. 122 (BIA 1972).

28. [^] 

 See INA 212(a)(9)(B)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2629).

29. [^] 

 See INA 212(a)(9)(B)(iii)(II)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2629).

30. [^] 

 See Matter of Arrabally and Yerrabelly(http://www.justice.gov/eoir/vll/intdec/vol25/3748%20(final).pdf), 25 I&N Dec. 771 (BIA 2012).

31. [^] 

 See 7 USCIS-PM M.3(B)(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartM-Chapter3.html#S-B).

32. [^] 

 See 7 USCIS-PM M.3(B)(http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartM-Chapter3.html#S-B).

33. [^] 

 This is a determination made by the Department of Health and Human Services, Centers for Disease Control and Prevention.

34. [^] 

 See 8 CFR 209.2(e)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15551.html#0-0-0-11811).

35. [^] 

 See INA 209(b)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html#0-0-0-2093).

36. [^] 

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

37. [^] 

 See INA 208(c)(2)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1687.html#0-0-0-2031).

38. [^] 

 See 8 CFR 209.2(e) (http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15551.html#0-0-0-11811)and 8 CFR 209.2(f)(http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15551.html#0-0-0-11813).