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OI 209.3 Alien granted asylum. -- Eligibility.
Application. Form I-485, Application to Register Permanent Residence or Adjust Status, must be filed by each individual applicant for permanent residence. For those aliens 14 years of age or older, the application must be accompanied by Form G-325A and fingerprint card FD-258, which will be processed in accordance with
In addition, a Health and Human Services data sheet must be submitted with each application.
Physical presence in the United States. Every applicant, except an applicant eligible for adjustment of status under
8 CFR 209.2(a)(2)
, must have been physically present in the United States for a period or periods in the aggregate of at least one year after having been granted asylum. Each application, including an application filed by a spouse or child of an asylee, must be supported by evidence establishing the applicant's physical presence in the United States for the required period.
Status as a refugee. Every applicant, except an applicant eligible for adjustment of status under
8 CFR 209.2(a)(2)
, must continue to be a refugee within the meaning of section
of the Act, or the spouse or the child of such refugee. However, an adjustment application may not be denied because the applicant is no longer a refugee, unless the record contains written evidence that the asylum office has first revoked the applicant's grant of asylum. The following factors should be taken into consideration in determining whether sufficient reason exists to refer the case to the asylum office for possible revocation of the applicant's asylum grant:
Changed country conditions.
If asylum status was granted prior to November 29, 1990, adjustment may be granted under
8 CFR 209.2(a)(2)
, even though the applicant may no longer be a refugee because of changed country conditions.
If asylum status was granted on or after November 29, 1990, and the applicant can no longer demonstrate that he or she continues to be a refugee due to changed country conditions, the case should be referred to the asylum office for consideration of revocation of asylee status. However, officers should keep in mind the difficulty of establishing that a given applicant can no longer establish a well-founded fear of persecution solely because of changed country conditions. Despite vastly improved country co
nditions, other factors may indicate that the applicant continues to be a refugee. Such factors may include, but are not limited to, severe persecution in the past or the continued possibility of localized persecution. Factors which, taken together with improved country conditions, may indicate that the applicant no longer continues to be a refugee, include, but are not limited to:
voluntary return to the country of alleged persecution;
application for and/or receipt of a national passport, passport renewal, or entry permit issued by the country of alleged persecution, or other voluntarily re-acquisition of the nationality of that country; and
application for and/or receipt of benefits from the country of alleged persecution.
Fraudulent acquisition of asylee status. If the applicant is found to have fraudulently obtained asylee status and the circumstances were such that the applicant would have been ineligible for asylee status on the true facts at the time asylee status was granted, the case must be referred to an asylum office. The referral should be accompanied by the sworn statement of the applicant which covers each of the areas in which the fraud is alleged to have been perpetrated and the claimed true facts at the time.
Commission of act mandating asylum denial under 8 CFR
. If there is reason to believe that the applicant has committed an act which would have been the basis of a mandatory asylum denial under 8 CFR
, the case should be referred to the asylum office. The referral should be accompanied by a sworn statement from the applicant and documentary evidence, if available, that the applicant has committed an act which would have been grounds for mandatory denial.
Firm resettlement in a third country. The applicant, including an applicant seeking adjustment under
8 CFR 209.2(a)(2),
may not have been firmly resettled in a third country. Guidance on the meaning of "firm resettlement" can be found in
8 CFR 208.15
. If there is reason to believe that the applicant has been firmly resettled in a third country, the case should be referred to the asylum office. The referral should be accompanied by the sworn statement of the applicant concerning the alien's journey from the country of persecution to the United States, the conditions of the alien's residence in the third country, and any other factors necessary to establish firm resettlement in the third country.
Referral memorandum to asylum office requesting review of refugee status. If the applicant appears not to be, or appears no longer to be a refugee within the meaning of section
of the Act, or the spouse or child of such a refugee, the case must be referred to the asylum office having jurisdiction over the applicant's place of residence for a review of the applicant's entitlement to refugee status. The adjustment application must be held in abeyance until a written decision is received from the asylum office either revoking or reaffirming the grant of asylum status. The complete file, accompanied by a memorandum signed by the supervisory examinations officer, must be forwarded t
o the asylum office. A copy of the applicant's sworn statement concerning the facts upon which the referral is being made should accompany the referral memorandum. The referral memorandum must contain the following information:
The date the applicant's asylum status was granted (NOTE: Many applicants who were granted asylum prior to November 29, 1990, continue to be eligible for adjustment of status even though they no longer meet the definition of refugee. (See
8 CFR 209.2(a)(2).
A complete, concise explanation of the reason(s) the applicant appears to no longer qualify as a refugee; and
Other information or reference to sworn statements or other supporting documents which the referring officer believes to be relevant.
Admissibility to the United States. The applicant must be admissible to the United States as an immigrant at the time the adjustment is granted, with the exception of the provisions of sections
of the Act, and any other provisions for which the applicant has been granted an individual waiver.
(NOTE: The requirements of
of the Act, including the requirement that the applicant has been inspected and admitted or paroled, do not apply to asylee adjustments under section 209(b) of the Act).
Waivers. Any provision of
of the Act may be waived at the discretion of the district director, with the exception of paragraphs
, 212(a)(3)(B), 212(a)(3)(C), 212(a)(3)(E), and
of the Act insofar as it relates to drug trafficking.
Waiver application. The application for a waiver shall be made by filing Form I-724, Application to Waive Exclusion Grounds, with the district director. The burden of proof is upon the applicant to establish that such waiver should be granted for humanitarian purposes, to assure family unity, or is in the public interest. The district director shall cause such investigation as is necessary to establish the facts and circumstances in the case. The applicant shall be notified in writing of the decision, a
nd if the application is denied, the reason therefor. No appeal shall lie from a denial by the district director.
Exchange applicant. An applicant who has had the status of an exchange alien under section
of the Act shall be eligible for adjustment under section
of the Act without regard to the foreign residence requirement of section
of the Act.
Medical examination. The applicant shall be required to submit to an examination by a selected civil surgeon as provided by section
of the Act. The medical report shall be incorporated into the record. (See
for medical examination of adjustment applicants.)
Refugee numbers. A refugee number must be available under section
of the Act.
Control of approved asylum numbers. Under section
of the Act, a total of not more than ten thousand asylees may be adjusted each fiscal year to the status of an alien lawfully admitted for permanent residence. An asylee, or a spouse or child of an asylee, may file an application to adjust status under section 209(b) of the Act after completion of the one-year period of physical presence, regardless of the availability of adjustment numbers. However, an adjustment number must be available at the time the application is approved and the adjustment grant