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;
Physically present in the United States as a refugee for at least 1 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.
Only applicants classified as refugees are eligible to adjust status as a refugee. Noncitizens 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) 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 noncitizens 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:
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) 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, but through a process separate from the refugee adjustment process.
As part of a program under the Lautenberg Amendment first introduced in 1990, certain noncitizens 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 the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990.
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 1 year can adjust status under the Cuban Adjustment Act of 1966.
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 the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2001.
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 noncitizens generally have no means to adjust status based on their parole.
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 noncitizens 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) 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 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 noncitizens are not refugees. The holder of a SQ-1 classification must have an approved Form I-360 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.
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 noncitizens are not refugees. The holder of the SQ-1 classification must have an approved Form I-360 in order to apply for adjustment of status. Afghan 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.
Noncitizens Erroneously Admitted to the United States as Refugees
Sometimes a noncitizen 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. 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.
Refugees are required to have 1 year of physical presence in the United States at time of adjudication of the adjustment of status application. Principal and derivative refugees start accruing physical presence on the date they are admitted as refugees to the United States. For derivative refugees who gained derivative refugee status through an approved Form I-730 and who were in the United States when the petition was approved, the 1 year period begins on the date the relative petition was approved.
Because the requirement is 1 year of physical presence and not just 1 year from the date of admission as a refugee, only time spent in the United States counts toward this requirement. Refugees 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 1 year.
The officer reviews the refugee’s Application to Register Permanent Residence or Adjust Status (Form I-485), the record, and USCIS systems to determine the amount of time the refugee has been present in the United States since the date of the refugee’s admission as a refugee (or the date of approval as a derivative refugee for Form I-730 beneficiaries processed in the United States). The officer may request additional information from the refugee to demonstrate physical presence in the United States if the officer is unable to determine it based on a review of the record and USCIS systems.
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.
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) 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.
Historically, USCIS has granted other noncitizens 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 once certain conditions have been met.
Prior to April 1, 1980, the Immigration and Nationality Act (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 2 years, later reduced to 1 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.”
The Refugee Act also allowed noncitizens 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 (PDF). 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) before April 1, 1980, shall have his status adjusted pursuant to the provisions of INA 203(g) and (h) 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.
Some noncitizens 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. Even though conditional entrance or parole of refugees was not permitted after passage of the Refugee Act, legacy Immigration and Naturalization Service (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 International and Refugee Affairs Division at the Refugee, Asylum, and International Operations Directorate (RAIO) for further guidance.
Certain special considerations may apply to refugees seeking 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 a refugee who previously had the status of an exchange visitor (J-1 and J-2 nonimmigrant), and who is subject to the 2-year foreign residence requirement under INA 212(e), even if the applicant never met the foreign residence requirement. The applicant is not required to show proof of compliance with or obtain a waiver of the foreign residence requirement if applying to adjust status under INA 209.
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 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. The most common scenarios are:
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 and 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 noncitizen signs an RE-3 Notice.
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 derivative spouse 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.
As of August 6, 2002, any derivative refugee child who had a pending relative petition (Form I-730), adjustment application (Form 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 derivative refugee’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.
[^ 7] Because USCIS’ practice and policy has varied with regard to whether the 1 year of physical presence was required at the time of filing or at the time of adjudication of the application, USCIS considers a refugee who was adjusted to lawful permanent residence despite not having accrued 1 year of physical presence at the time of filing their application for adjustment to have been lawfully admitted for permanent residence if the applicant had accrued 1 year of physical presence by the time of adjudication and the admission was otherwise lawful.
[^ 10] See 92 Stat. 907, 909 (October 5, 1978).
[^ 13] The foreign residency exemption in 8 CFR 209.2(b) extends to refugee and asylum-based adjustment of status. The Immigration Benefits Business Transformation, Increment I Final Rule revised 8 CFR 209.2(b) by adding the language “under this part” to exempt both asylee and refugee adjustment applicants from the 2-year foreign residence requirement in INA 212(e) if they were previously nonimmigrant exchange visitors (J-nonimmigrants) and therefore subject to this requirement. The final rule also added 8 CFR 209.1(f) as a waiver of inadmissibility provision for refugee adjustment applications, matching the existing provision for asylee adjustment applications at 8 CFR 209.2(b). See 76 FR 53764, 53785 (PDF) (Aug. 29, 2011).