Adjustment of Status for Derivative Asylees

Many of my nunc pro tunc asylum clients find their way to my blog post and ultimately retain my law firm after finding out that they are ineligible to adjust status. In most cases, the applicants are taken by surprise and learn of their ineligibility by a written decision from USCIS, denying their adjustment application, but leaving them with the hope of pursuing a nunc pro tunc application to obtain asylum in their own right. To better understand this process, it would help to take a step back and review the eligibility requirements for asylees to adjust status.

Under U.S. immigration law, an asylee is eligible to adjust status to that of a lawful permanent resident (green card) if he or she:

• has been physically present in the U.S. for at least 1 year after being granted asylum status;
• continues to meet the definition of a refugee or continues to be the spouse or child of the principal asylee;
• has not firmly resettled in any foreign country; and
• is admissible to the U.S. as an immigrant at the time of the adjustment interview.

As for the first requirement (1 year of physical presence), the applicant simply has to remain in the U.S. for 365 days from the date of approval of the asylum application (as shown on the written decision) before filing the I-485 application for adjustment of status. This is a very low bar for the applicant to meet and is generally proven by submitting minimal documentation of U.S. residence for the past year.

The second requirement can be a little more complicated, especially for derivative asylees, since it requires that their relationship with the principal asylum applicant remains the same, and also that the principal does not become a naturalized U.S. citizen. Thus, for example, if the principal dies, the derivative is married to the principal and divorces, or the derivative dependent gets married, the derivative asylee no longer meets the definition of a refugee under U.S. immigration law. As a consequence, the derivative asylee would not be eligible to file for adjustment of status and his or her application would be denied on this ground. However, as explained in my previous blog post, the workaround for this situation is to file a nunc pro tunc I-589 asylum application. This allows the applicant to obtain asylum in his or her own right so that he or she meets the definition of “asylee” again.

If you are an asylee and you have questions about whether you are eligible to adjust status, contact U.S. Immigration Lawyer Sean D. Hummel to schedule a consultation: (954) 385-3111.