\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1998 \ FEDERAL REGISTER FINAL REGULATIONS - 1998 \ Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and Unmarried Children of a Refugee/Asylee [63 FR 3792] [FR 8-98]
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Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and Unmarried Children of a Refugee/Asylee [63 FR 3792] [FR 8-98]
FEDERAL REGISTER CITE:
63 FR 3792
DATE OF PUBLICATION:
January 27, 1998
BILLING CODE 4410-01-C
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 207, 208, and 299
[INS No. 1639-93]
Procedures for Filing a Derivative Petition (Form I-730) for
a Spouse and Unmarried Children of a Refugee/Asylee
Immigaration and Naturalization Service, Justice.
This final rule amends the Immigration and Naturalization Service (Service) regulations by providing specific guidelines on the procedures which must be followed by a refugee or asylee to bring his/her spouse and unmarried, minor child(ren) (derivatives) into the United States. This rule responds to the family reunification needs of refugees by establishing an equitable and consistent derivative policy for refugees which parallels the current derivative procedures for asylees. This rule also amends asylum
regulations by removing from the definition of qualifying relationship child(ren) born to, or legally adopted by, the principal alien and spouse after approval of the principal alien's asylum application.
This rule is effective February 26, 1998.
FOR FURTHER INFORMATION CONTACT:
Suzy Nguyen or Ramonia Law-Hill, Senior Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.
On July 9, 1996, the Service published a proposed rule in the
at 61 FR 35984, providing procedures that must be followed by a refugee or asylee to bring his or her spouse and unmarried, minor child(ren) (derivatives) into the United States.
The proposed rule was designed to respond more fully to the family reunification needs of refugees, while establishing specific guidelines on the derivative policy for both refugees and asylees. First, the proposed rule allowed the Service to use the refugee's date of admission into the United States to determine accompanying or following-to-join eligibility for his/her spouse and unmarried, minor child(ren). A refugee would be able to file a Form I-730, Refugee/Asylee Relative Petition, for his/her spouse
and/or each individual child if the relationship predates the refugee's date of admission to the United States, rather than the date of interview or tentative approval date of the application. This eligibility would extend to a child who is
on the date of the refugee's admission to the United States but is born after the refugee's admission as a refugee.
Second, the proposed rule imposed a 1-year time limit from the date of the principal refugee's admission to the United States within which he or she must file a Form I-730 for his/her spouse and/or each individual child, unless the Service determined that the filing period should be extended for humanitarian reasons. Similarly, the principal asylee would be required to file a Form I-730 for each qualifying family member within 1 year of the date on which he or she was granted asylum status, unless the Servi
ce determines that the filing period should be extended for humanitarian reasons.
Third, the proposed rule required that only an alien who was admitted to the United States as a principal refugee would be eligible to file the Form I-730 for accompanying or following-to-join benefits for his/her spouse and/or unmarried, minor child(ren). Those individuals who derived their refugee status from the principal refugee would not be eligible to file a Form I-730.
Fourth, the proposed rule would amend the asylum regulations by requiring that, for purposes of filing a Form I-730, the asylee's relationship to a child must have existed at the time of approval of the asylum application.
Finally, the proposed rule added certain documentary and evidentiary requirements for filing a Form I-730, such as requiring that a separate Form I-730 be filed for each individual qualifying
family member and that a photograph of the derivative be included. These proposed regulations served to clarify the Service's accompanying and following-to-join policy for Service officers and the general public by standardizing refugee and asylee derivative procedures.
The Immigration and Naturalization Service allowed a 60-day public comment period which ended on September 9, 1996. The Service received 19 comments on the proposed rule. The following is a discussion of those comments and the Service's response.
Discussion of Comments
Using the Principal Refugee's Date of Admission To Determine Derivative Eligibility
The Service proposed that the principal refugee's date of admission into the United States be used to determine accompanying or following-to-join eligibility for his/her derivatives. Current regulations require that the refugee's relationship to the spouse or child exist prior to the tentative approval date of the principal's application for refugee status. Furthermore, according to the proposed rule, if the refugee proves that he/she is the parent of a child who was born after the refugee's admission to th
e United States, but who was in utero on the date of refugee's admission as a refugee, the child shall be eligible to accompany or follow-to-join the refugee.
Fourteen commenters praised and supported the Service's decision to use the principal refugee's date of admission rather than date of tentative approval. In addition, three commenters supported the Service's proposed rule pertaining to children in utero. Only one commenter was in opposition, claiming that the change would invite exploitation and fraud.
The Service has carefully considered the one commenter's concern regarding the possibility of fraud. The Service feels that the proposed rule contains certain evidentiary and documentary requirements (such as requiring a recent photograph of the spouse or child and requiring evidence of the claimed relationship as set forth in 8 CFR part 204) which may reduce the risk of fraud and exploitation. Furthermore, the current interpretation of derivative eligibility for refugees has created confusion for Service o
fficers, attorneys and representatives, refugees, and the general public. The Service believes that this rule will alleviate inconsistencies in determining eligibility that has been encountered due to the difficulty in determining the date of tentative approval of the principal refugee's application. In addition, the current interpretation is too restrictive because it requires a refugee to meet a heavier burden for establishing a relationship with his/her spouse and/or child(ren) than is required by regula
tion for a citizen or lawful permanent resident of the United States. Moreover, the Service believes that this rule reflects the intent of Congress by enhancing family reunification for refugees.
One Year Filing Requirement
The proposed rule required that a separate Form I-730 must be filed for each qualifying derivative within 1 year of the principal refugee's admission to the United States, unless the Service determines that the filing period should be extended for humanitarian reasons. Similarly, the proposed rule required that a separate Form I-730 for each qualifying derivative must be filed within 1 year of the date on which the principal asylee was granted asylum status, unless the Service determines that the filing per
iod should be extended for humanitarian reasons.
Twelve commenters opposed the 1-year time limit. Ten of those claimed that 1 year is too short or unrealistic. Two commenters suggested a minimum of 3 years, and one suggested that a more reasonable time limit would be when the refugee/asylee becomes eligible for U.S. Citizenship. Seven commenters argued that there is no time restriction imposed in the Immigration and Nationality Act ("the Act") and that, therefore, the Service should not set a time limit. Others noted that, since this is a newly imposed ti
me limit, the Service should ensure that refugees and asylees are well informed of this filing requirement. Only one commenter agreed that the 1-year time limit was reasonable.
Derivative benefits for refugees and asylees are intended to expediently reunite families in order for them to make the difficult transition to a new life with the support of their immediate family members by avoiding lengthy delays due to visa quotas. The timely filing of Form I-730 will expedite the reunification of refugee families. At the moment, Service regulations on derivative benefits for refugee and asylees contain no time limitation. As a result, there are individuals who had entered the United St
ates in the late 1970s or early 1980s as refugees who did not file Form I-730 petitions for their derivatives until ten or more years after their admission. Such filings no longer serve the purpose for which they were originally intended and, instead, only serve to deplete limited refugee admission numbers and refugee resettlement monies needed for currently emerging refugee populations. In determining the filing time limitation for Form I-730, the Service acknowledges that it must be responsive to the need
s of the applicant base.
After careful consideration of the comments received, the Service is modifying the proposed rule with regard to the 1-year time limit. Accordingly, the final rule requires that the Form I-730 must be filed within 2 years of the date of admission to the United States for a refugee, or within 2 years of the grant of asylum for an asylee. Although the Service believes that 1 year is a reasonable time limit for refugees and asylees to file the Form I-730, the Service would like to acknowledge and address the co
mmenters' concerns by adopting this change. Therefore, the filing of the Form I-730 within 2 years of admission as a refugee or grant of asylum will serve to notify the Service of a refugee's or asylee's intent to have his/her derivative(s) join him/her in the United States. The Service has also carefully reviewed the provisions of section 207(c)(2) of the Act and has determined that the establishment of a filing period does not violate the language or intent of that section of the Act.
Five commenters argued that, since the proposed rule did not define which "humanitarian reasons" warranted an extension of the filing deadline, this would lead to arbitrary and conflicting decisions by Service officers, or create a large category of applicants under this exception. On the contrary, the Service believes that defining the specific qualifying "humanitarian reasons" would only act to restrict severely the category and shut the door on applicants who need this exception most. As with other immig
ration benefits, applications should be decided on a case-by-case basis. Likewise, although humanitarian exceptions are used throughout other Service regulations, the term is not defined so that individuals with exceptional cases are not shut out. The Service will make continual assessments of the processing of the I-730 petitions, particularly in the early stages of the promulgation of this rule, and provide guidance to Service officers, if necessary, in order to ensure uniformity in the decision process.
Ten commenters noted that the Service should have some type of grandfather clause to allow petitioners whose Forms I-730 were denied under the old regulations to refile or reopen their cases. Five commenters pointed out that, although the introductory comment to the proposed rule had indicated that refugees and asylees in the United States for more than 1 year when the regulation becomes effective would be given 1 year to file, this provision was not put in the proposed regulation itself. Furthermore, the p
roposed rule failed to address refugees and asylees who have been in the United States for less than 1 year at the time the regulation becomes effective.
The Service agrees with the commenters who expressed the need for some type of grandfather clause. The Service is also grateful to those commenters who spotted the inadvertent omission. In response to these comments, the Service is including a grandfather clause in the final rule which allows all persons admitted as refugees or granted asylum prior to the effective date of the final rule to file the Form I-730 within 2 years of that effective date regardless of when they were admitted as a refugee or grante
d asylum. This will allow refugees and asylees an equal opportunity to apply for derivative benefits for their spouse and/or child(ren). A principal refugee who had previously submitted the Form I-730 but was denied because of current regulations requiring the relationship with his/her derivative(s) to have existed prior to the tentative approval date of his/her application for refugees status should reapply by submitting Form I-730 for each individual derivative within 2 years of the effective date of the
final rule. It is noted that petitioners must reapply in these situations since the Service will not sua sponte reopen previously denied files. In order to better inform the general public, the Service is including the grandfather clause in the instructions part of the revised Form I-730 to inform all potential refugee and asylee petitioners that they have either 2 years from the date on which the final rule becomes effective or 2 years after the date of admission (for refugees) or grant of asylum (for asyl
ees), whichever is later, to file the Form I-730.
Only the Principal Refugee May File a Form I-730
Similar to current regulations, the proposed rule required that the Form I-730 be filed by the principal refugee. Individuals who have derived their refugee status from the principal refugee are not eligible to file a Form I-730.
Ten commenters opposed the Service's requirement that only the principal refugee may file the Form I-730. Four commenters claimed that, because of the refugee registration systems used overseas, certain refugees may be inadvertently labeled as a derivative when he/she does not fit the definition of a derivative spouse or child and, in fact, should be considered a principal for the purposes of filing the Form I-730. Two commenters argued that any refugee who does not meet the statutory definition of a "deriv
ative" should be allowed to file the Form I-730. Several commenters stated that if the purpose of the principal applicant rule is to deter fraud, then it is overbroad and, as such, violates the intent and language of the Act. One commenter expressed the need for a humanitarian exception in the case where the principal refugee is deceased or incapacitated, becomes abusive, or abandons his/her family after the derivative spouse has reached the United States, in order to allow the derivative spouse to petition
for their mutual child(ren). Another commenter stated that the regulation should allow for the child of an unmarried parent to accompany or follow-to-join him/her even if the parent had obtained his/her refugee status on a derivative basis.
The Service has carefully considered their comments and has reviewed the language of the Act at sections 207 (c)(1) and (c)(2). The requirement that only the principal refugee may file for accompanying of following-to-join benefits for his/her spouse and/or child(ren) may be ascertained from the language of sections 207 (c)(1) and (c)(2) of the Act. Section 207(c)(2) provides for the admission of spouses and children (as defined in section 101(b)(1) (A), (B), (C), (D), or (E) of the Act) of a refugee qualif
ying for admission under section 207(c)(1) of the Act. Accordingly, only a principal refugee, admitted under section 207(c)(1) of the Act, may file a Form I-730 on behalf of his or her spouse or child(ren). The Service already regards persons admitted under section 207 who do not meet the statutory definition of a spouse or child to be principals for the purpose of filing an I-730 petition.
Eight commenters stated that the proposed rule was confusing in its use of the terms "principal refugee," "principal applicant," and "principal alien." The Service agrees with these comments and has removed the term "principal applicant" from the final rule in order to avoid any confusion.
Eligible and Ineligible Relatives of a Refugee/Asylee
The Service listed in proposed § 207.7(b) relatives of refugees who are ineligible for accompanying or following-to-join benefits, which included: a spouse or child who has previously been granted asylee or refugee status; an adopted child, if the adoption took place after the child became 16 years old, or if the child has not been in the legal custody and living with the parent(s) for at least 2 years; a stepchild, if the marriage that created this relationship took place after the child became 18 years ol
d; a husband or wife if each/both were not physically present at the marriage ceremony and the marriage was not consummated, or if the U.S. Attorney General has determined that such alien has attempted or conspired to enter into a marriage for the purpose of evading immigration laws; and a parent, sister, brother, grandparent, grandchild, nephew, niece, uncle, aunt, cousin or in-law.
Six commenters put forth various arguments for the inclusion of certain relatives as eligible accompanying or following-to-join derivatives of a refugee or asylee. Four commenters stated that some type of exclusion should be made for a child of a derivative child. Two commenters claimed that relatives listed in proposed § 207.7(b)(6) (i.e., parent, sibling, grandparent/child, nephew/niece, uncle/aunt, cousin, and in-law) should be included as derivative refugees when they are dependent on the principal refu
gee and reside in his/her household. One commenter argued that barring the mother of the principal alien's child because the principal was not married to the child's mother is harsh and irrelevant. Another claimed that eligible "accompanying derivative" should include relatives of the principal petitioner's spouse, or the principal petitioner's child. One commenter pointed out that many children in agrarian or less-developed societies are customarily adopted without legal formalities; therefore, people shou
ld be allowed to present proof that they were the actual custodial guardian of the child for the requisite minimum of 2 years, to petition for the child as a derivative refugee, and then complete the legal adoption formalities in the United States.
The Service has carefully considered these comments. However, section 207(c)(2) of the Act clearly specifies that only a "spouse or child (as defined in section 101(b)(1) (A), (B), (C), (D), or (E))" of a refugee shall be eligible for accompanying or following-to-join benefits. Accordingly, the Service has deemed ineligible those relatives who do not fit the statutory definition of a spouse and child as defined in sections 101(a)(35) and 101(b)(1) (A), (B), (C), (D), or (E), respectively, of the Act.
Evidentiary and Documentary Requirements
The proposed rule required that a separate Form I-730 must be filed for each qualifying family member, which must also include a recent photograph of this family member. The petitioning refugee or asylee has the burden to establish by a preponderance of the evidence that the person for whom he/she is petitioning is an eligible spouse or child. The evidence to establish the claimed relationship for a spouse or unmarried, minor child as set forth in 8 CFR part 204 must be submitted with the Form I-730; where
possible, this will consist of the documents specified in § 204.2(a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5). No fee is charged for filing a Form I-730 petition.
Three commenters opposed the proposed requirement that a separate Form I-730 must be filed for each family member. Four commenters claimed that the photograph requirement is too restrictive and unrealistic. Six commenters argued that the heightened evidence needed to prove spousal relationship should only apply in situations where Congress has expressed the fear of marriage fraud, which would not include refugees cases. In addition, five commenters stated that the "where possible" language of the proposed r
ule is vague and, therefore, may result in arbitrary decisions by Service officers.
The Service has carefully considered the comments. However, the Service believes that the evidentiary and documentary requirements are reasonable. First, having a separate Form I-730 for each family member will enhance efficiency and facilitate Service processing of the petition, especially in cases where there are many derivatives and/or they are residing in different geographic locations. Since each derivative has a separate I-730, each petition may be processed on its own without having to wait for the r
est of the family members. Second, the photograph required of each derivative need not meet Alien Documentation Identification and Telecommunication System (ADIT) specifications. The Service believes that it is not overly burdensome to require a non-ADIT photograph. Third, the Service believes that adopting the standard of evidence set forth in 8 CFR part 204 to establish a claimed relationship for a spouse or minor, unmarried child is a reasonable requirement in light of the risk of fraudulent petitions.
Finally, petitioners should note that although there is no appeal from the denial of a petition filed on Form I-730, the denial shall be without prejudice to the consideration of a new petition or motion to reopen the refugee or asylee relative petition proceeding, if the petitioner establishes eligibility for accompanying or following-to-join benefits. This is consistent with other types of applications for immigration benefits where no administrative appeal is available, but the applicant may submit a new
application or a motion to reopen in the case of a denial (e.g., 8 CFR 204.2(a)(1)(iii)(D)).
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule is administrative in nature and merely imposes specific regulatory restraints, which parallel procedures currently found in asylum regulations. This rule will not result in an annual effect on the economy o
f $100 million or more or adversely and materially affect a sector of the economy, or cause major increases in costs or prices for consumers, or have other adverse effects on the economy in terms of productivity, competition jobs, the environment, public health, or safety. Furthermore, the affected parties are not small entities, and the impact of the regulation is not an economic one.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to and, approved by, the Office of Management and Budget.
Executive Order 12612
The regulations proposed herein will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The revised Form I-730 has been included at the end of this final rule to allow the public to duplicate the form from the Federal Register until the form is printed and distributed worldwide.
Paperwork Reduction Act
The information collection requirement (Form I-730) contained in this rule has been submitted to and approved by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. The clearance number for this collection is contained in 8 CFR 299.5