Adjustment of Status of Refugees and Asylees

Transcription

1 Adjustment of Status of Refugees and Asylees Dallas, Texas March 26, 2014 Presenters: Heather Scavone, Attorney, Director, Humanitarian Law Clinic, Elon University School of Law Kristina Karpinski, Senior Attorney, Training and Legal Support, CLINIC Diana Saldana, Immigration Services Officer, USCIS, Texas Service Center Ginger Gordon, Immigration Services Officer, USCIS, Texas Service Center 2 Where is the Law? Refugees: INA 209(a) 8 CFR Asylees: INA 209(b) 8 CFR

2 Why Apply for Adjustment of Status? For refugees, it s statutorily mandated at 8 CFR 209.1(a): Every alien in the United States who is classified as a refugee under part 207 of this chapter, whose status has not been terminated, is required to apply to the Service 1 year after entry in order for the Service to determine his or her admissibility under section 212 of the Act. For asylees, it s not mandatory, 8CFR 209.2(a): Except as provided in paragraph (a)(2) or (a)(3) of this section, the status of any alien who has been granted asylum in the United States may be adjusted by USCIS to that of an alien lawfully admitted for permanent residence, provided the alien... Adjustment for Principal Refugees Admitted as a refugee under INA 207 Refugee status not abandoned/terminated Must apply after one year of physical presence in U.S. Not Inadmissible INA 209(a) and (c) 5 Derivative Refugees Spouse and unmarried children of principal when obtained refugee status Child living or in utero Requirements the same as for principals Must apply after one year of physical presence in U.S. Admissible Not relevant whether refugee entered as principal or derivative or whether still a spouse/child 6 2

3 Adjustment for Principal Asylees May apply after one year of physical presence after asylum grant Has not abandoned asylee status Continues to meet definition of refugee at INA 101(a)(42)(A) Not firmly resettled in third country Not inadmissible 7 Derivative Asylees Spouse and unmarried children of principal Same requirements as principals plus must still be spouse or child of principal If relationship ends through divorce, death*, or marriage of derivative, nunc pro tunc asylum application in order to adjust * 204(I) permits adjustment if derivative: Resided in US when principal died Continues to reside in the US If principal naturalizes, derivative will have go through nunc pro tunc process 8 Nunc Pro Tunc Asylum Applications Derivative s status as spouse or child of principal asylee ends, he/she will need to file a nunc pro tunc (now for then) I-589 Generally, a bare-bones I-589, and copy of the principal s I-589 if possible Interview at local Asylum Office 9 3

4 Nunc Pro Tunc Nabil was granted asylum in He filed an I-730 for his wife Halla in 2011 and she was admitted to the U.S. as an asylee in January of Nabil and Halla divorced in February of Halla wants to know: How does the divorce impact her asylee status? Is she able to apply for her permanent residence? 10 Derivatives and CSPA Child Status Protection Act protects most derivative asylee/refugee children from aging out Asylee: Derivative asylee status preserved if parent files for asylum (I-589) before child turns 21 Refugee: Derivative refugee status preserved if interviewed on I-590 prior to age Derivative Asylees and CSPA Victoria filed for asylum last year and listed her three children on the I-589 form. Victoria was just granted asylum in February but her eldest son Samuel turned 21 in November. Victoria wants to know: 1. If Samuel is in the U.S., will be granted asylee status? 2. If Samuel is outside of the U.S. can he join Victoria in the U.S.? 3. Will Samuel be able to gain permanent residence? 12 4

5 ADJUSTMENT OF STATUS VS. INADMISSIBILITY First: eligible for adjustment of status? Meet criteria under 209(a) for refugee or 209(b) for asylee Second: does any ground of inadmissibility apply? Third: eligible for a waiver under 209(c)? 13 INADMISSIBILITY GROUNDS under INA 212 Health-related Criminal-related National security Public charge Labor protection Fraud or other immigration violations Documentation requirements Ineligible for Citizenship Prior removals or unlawful presence in the U.S. Miscellaneous (polygamists, international child abduction, unlawful voters) 14 EXEMPTIONS FOR REFUGEES AND ASYLEES Public Charge 212(a)(4) Labor Protections - 212(a)(5) Documentation Requirements 212 (a)(7) 15 5

6 WAIVERS Section 209 (c): most grounds waivable for humanitarian purposes, to assure family unity or when it is otherwise in the public interest. Grounds that can not be waived: Drug traffickers Security- Related Terrorist Activities Serious Adverse Foreign Policy Consequences Participation in Nazi Persecution, Genocide or Acts of Torture or Extrajudicial Killings 16 ADJUDICATION OF WAIVERS Should be evaluated on case-by-case basis. Balance seriousness of ground v. humanitarian, public interest or family unity considerations. Demonstrated fear of persecution is strong positive discretionary factor. Adjudicator may grant a waiver without an I-602 except for health grounds. 17 Filing Successful Applications What to File Where to File Practice Tips 18 6

7 Refugees: What to File I-485 (no fee) G-325A (if age 14-79) G-28 if applicable, signed by client, representative Evidence of refugee status (I-94) I-693 with vaccination portion completed medical grounds of inadmissibility noted at entry, need I-693; if waiver, show follow-up action Derivatives granted via I-730 inside U.S. need full I Refugees: What to File Evidence of travel outside U.S. since entry (if any) Evidence of name changes or errors on I-94 I-602 if necessary Remember to prepare separate I-485 packets for each family member ; can be mailed together in same envelope 20 What to File: Asylees I-485 G-325A (if age 14-79) G-28 if applicable I-485 filing fee or fee waiver request Biometrics fee (if age 14-79) Evidence of asylee status (copy of I-94, approval notice from Asylum Office, Immigration Judge or BIA decision) 21 7

8 What to File: Asylees Evidence of trips outside U.S. since asylum grant (if any) I-602 if necessary I-693 full medical exam including completed vaccination portion Exception if received derivative asylum status through I-730 and received a medical exam before traveling from abroad Separate I-485s for derivative family 22 Where to File: Refugees and Asylees If applicant lives in AK, AZ, CA, CO, Guam, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, or WY file at: USCIS P.O. Box Phoenix, AZ For overnight or private couriers: USCIS Attn: AOS 1820 E. Skyharbor Circle S Suite 100 Phoenix, AZ Where to File: Refugees and Asylees If applicant lives in AL, AR, CT, DE, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, SC, OK, PA, Puerto Rico, RI, TN, TX, VT, VA, U.S. Virgin Islands, WV, or Washington, DC file at: USCIS PO Box Dallas, TX For overnight or courier: USCIS Attn: AOS 2501 S. State Hwy 121 Business, Suite 400 Lewisville, TX

9 ADJUDICATION Adjudication at Texas Service Center or Nebraska Service Center Some cases sent to USCIS District Office for interview. If waiver of inadmissibility denied, adjustment will be denied No appeal but case can be reviewed in removal proceedings. 25 If Granted -- Refugees Date of adjustment backdated to date of entry to the U.S. as a refugee, 8 CFR 209.1(e) Eligible to naturalize five years after admission 26 If Granted -- Asylees Date of adjustment backdated to one year prior to approval, 8 CFR 209.2(f) Eligible to naturalize four years after adjustment approved 27 9

10 Questions? 10