Chapter 5 - Adjudication Procedures

A. Record of Proceedings Review and Underlying Basis

The officer should place all documents in the file according to the established record of proceedings (ROP) order, including the filing of any documents the applicant submitted in response to a Request for Evidence (RFE). 

In determining eligibility for adjustment of status as an asylee, the officer should review the underlying application (either Form I-589 or Form I-730) that provided the applicant with asylum status. The application establishes 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 make the decision to interview an asylee applicant for adjustment of status on a case-by-case basis.[1] Interviews are generally required when an officer is unable to verify identity or eligibility or determine admissibility based solely on the available immigration records. Although the decision to conduct an interview is made on a case-by-case basis, an officer should generally refer a case for interview if it meets one or more of the following criteria:

  • The officer cannot verify the identity of the applicant through the information in the A-File and other USCIS systems; 

  • The officer can verify the identity of the applicant through the information in the A-File or other USCIS systems, but the applicant is claiming a new identity;

  • Immigration records are insufficient for the officer to determine whether or not the applicant has asylum status;

  • The applicant has an approved Form I-730 but, if granted overseas, was not interviewed as part of the overseas process or, if in the United States, was not interviewed prior to the approval;

  • The applicant’s Federal Bureau of Investigation (FBI) fingerprint check results indicate a record that may cause the applicant to be inadmissible, or the applicant has had two unclassifiable fingerprint responses;

  • The officer cannot determine the applicant’s admissibility without an interview;[2]

  • 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 derivative asylee no longer has the requisite relationship to adjust status as a derivative spouse or child;[3]

  • The applicant has an articulable and unresolved national security or terrorism-related ground of inadmissibility concern;

  • The applicant has unresolved or conflicting identities, other than properly documented by legal name changes;

  • A sworn statement is required to address the applicant’s admissibility;

  • An interview would yield clarifying information, such as with an unclear response to an RFE concerning the applicant’s admissibility; or

  • The officer has any other articulable and unresolved concern regarding identity, inadmissibility, national security, public safety, or fraud, and recommends an interview to help to resolve that concern.

These interview criteria may be modified in response to developing circumstances and concerns.[4]

C. Waiver Instructions

When the officer determines that an applicant is inadmissible and a waiver is available, the officer may grant the waiver without requiring submission of an Application by Refugee for Waiver of Grounds of Excludability (Form I-602) if:

  • 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) is not required, the officer should indicate that the waiver has been granted by annotating on the adjustment application the particular inadmissibility that has been waived. The officer may use a written annotation, stamp, or pre-printed label to indicate the specific inadmissibility ground that is being waived in any open space on the face of the adjustment application. 

An officer’s signature and approval stamp on the adjustment application also serves as the signature and approval of the waiver for any waived grounds of inadmissibility specified on the face of the adjustment application. Waivers granted because the vaccinations were not medically appropriate or other blanket waivers for medical grounds do not require a waiver annotation on the adjustment application or the medical examination and vaccination record (Form I-693). All others require an annotation. 

When a waiver application is required, 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 also indicates the approval of the waiver or the waiver application.

If the applicant is statutorily ineligible for a waiver (that is, 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”[5] in the space labeled “Reasons.”

The officer should 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. 

D. 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 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 does not match the information contained on the adjustment application. Additionally, the applicant would need to provide a reasonable explanation for why his or her true identity, including name and date of birth, was not properly established with the Form I-730.

During the asylum or overseas interview, asylees reviewed their asylum application or relative petition and biographical information and had the opportunity to correct any errors or resolve any identity issues at that time. Therefore, an officer should be cautious in reviewing any documents that now assert a change to the applicant’s name or date of birth, as it raises the possibility that the person either used an alias or committed fraud or misrepresentation at the time of the asylum or overseas interview. An officer may not accept an affidavit as proof of a changed name or date of birth.

An officer should be aware that name changes may legitimately occur after the asylum or overseas interview, such as in the case of a legal adoption, marriage, or divorce. Applicants requesting a name change at the time of adjustment 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; or

  • Adoption decree – lists adopted child’s birth name and the names of the adoptive parents.

E. Spelling of Names and Naming Convention Issues

From time to time, asylee adjustment applicants may complete an adjustment application by filling out their name in some variation of that which was listed on the Form I-589 or Form I-730. Although immigrants may be permitted on other local or federal government-issued documents to change their name or use a slightly different spelling, asylees are not 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.

F. 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 is 1 year before 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 1 year to July 1, 2008. This is the date that appears on the applicant’s Permanent Resident Card and in USCIS systems. Additionally, the 1-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 receives 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 is 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 still keeps his or her asylum status. In certain instances, if the officer denies the adjustment application because the applicant is inadmissible, the asylee may be placed into removal proceedings. 

Footnotes


[^ 1] See 8 CFR 209.2(e).

[^ 2] If evidence demonstrates an articulable ground for possible termination of asylum status, such as evidence of fraud in the asylum application or that the applicant no longer qualifies as a refugee under INA 101(a)(42), the officer should refer the file for further review and action on potential termination of asylum status. For more information on the grounds of asylum termination and procedures, see 8 CFR 208.24 and Chapter 6, Termination of Status and Notice to Appear for Considerations [7 USCIS-PM M.6].

[^ 3] For more information on derivative asylees ineligible for adjustment of status, see Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse or Child of the Principal Asylee, Subsection 2, Derivative Asylees Ineligible for Adjustment of Status [7 USCIS-PM M.2(C)(2)].

[^ 4] USCIS revised the interview criteria list for asylee-based adjustment of status applications on December 15, 2020, and after evaluating the criteria during implementation, USCIS is further revising the criteria that applies when an officer determines whether to refer an asylee or refugee adjustment applicant for an interview.  The updated interview criteria incorporates criteria relating to a principal’s underlying asylum claim into broader considerations and align with existing interview criteria for INA 245 adjustment as they relate to the admissibility determination and identity verification. Accordingly, the criteria promote consistency in adjudications across all adjustment applications. These criteria are well within the parameters of 8 CFR 209.2(e), as they retain an officer’s discretion, and each is reasonably related to the admissibility of the applicant. Additionally, officers must continue to make each determination to waive or require an interview on a case-by-case basis.

[^ 5] USCIS uses the Form I-291 to inform the applicant of the denial of his or her application.

Current as of November 23, 2021