Tips for Screening Refugees and Asylees for Adjustment of Status
✓Verify Refugee or Asylee Status – One requirement for refugee or asylee adjustment is that the applicant has to be either a refugee or asylee. Knowing whether a potential client is a refugee or asylee will also affect the line of inquiry during the screening process.
oVerifying Refugee Status – Review the refugee’s I-94 to verify her current status. If the refugee does not have an I-94, verify the category under which her EAD was issued. If the category is (a)(3), then she was admitted as a refugee.
If she does not have an EAD or I-94, then ask for copies of any documentation she has received from U.S. immigration authorities and review it to determine if she was admitted as a refugee. If the refugee has no proof of status, the legal representative can assist the refugee in filing a Freedom of Information Act Request with USCIS, a Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document, or obtaining a copy of the I-94 from a social services entity that may have a copy in its file. The legal representative can also contact the national resettlement agency that resettled the potential adjustment applicant to verify if she entered as a refugee.
Once refugee status is verified, a legal representative must determine that refugee status was not terminated. A legal representative should ask the refugee to bring all the documentation she has ever sent or received from any U.S. immigration agency. Review that documentation for anything indicating termination. In addition, ask the refugee simple questions about ever receiving a letter that threatened to take away refugee status or being in immigration court. Call the EOIR’s automated immigration court information system at 1-800-898-7180 to receive information about any removal or deportation case that was initiated against the refugee, which may indicate refugee status was terminated.
oVerifying Asylee Status –To verify an asylee’s status, review either the asylee’s I-94, the asylum office’s decision letter, or the immigration judge’s decision. If the asylee lost the I-94, review her EAD, which would have a category code of (a)(5). If the asylee does not have any of the items listed above, then request to review all her immigration paperwork. If nothing is revealed in the paperwork, then the legal representative can file a FOIA with USCIS and/or EOIR, file an I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document, or obtain a copy of the I-94 or asylum office or immigration judge decision from a social services agency that may have a copy of such item to administer benefits.
Unlike a refugee, an asylee does not need to prove that asylum status was not terminated, rather an asylee has to prove that she still meets the definition of refugee. USCIS will review the applicant’s A-file and application for information related to travel to the country of feared persecution or other items that may indicate the asylee is no longer a refugee.
✓Travel – For both refugees and asylees, travel is a concern that may affect eligibility not only to adjust, but also to maintain status as a refugee or asylee. Since refugees and asylees have to be physically present in the US for one year before filing adjustment the duration of the trip may affect ability to establish one year of physical presence. For asylees, legal representatives are concerned with whether the asylee voluntarily availed herself of the protection of her country of nationality, obtained a new nationality, or is no longer eligible for asylum due to a fundamental change in circumstances, or committed fraud in the application process. The concern with refugee travel relates to whether such travel indicates that the refugee was not, in fact, a refugee when she was admitted to the US. If travel patterns call into question past persecution claims, well-founded fear, or whether the refugee was a persecutor, then the refugee may be at risk of losing refugee status.
Ask the refugee or asylee questions regarding travel to determine if and how the travel may affect her ability to adjust or current immigration status. The following list of questions will help guide a discussion on travel with a refugee or asylee receiving an initial intake screening.
oWhere she traveled since obtaining refugee or asylee status? – If the refugee or asylee traveled to the country of feared persecution or country of nationality, then a red flag should be raised.
oWhat was the purpose of the trip? – If the trip was to care for a sick relative in the country of feared persecution or country of nationality, this does not raise as much of a concern as if the purpose were to obtain a new passport from the country of feared persecution or nationality, or to get married in the country of feared persecution or nationality or to buy or sell property in the country of feared persecution or nationality. If the purpose of the trip may affect refugee or asylee status, inquire further. The purpose may not be as damaging as it initially appears. For example, the refugee may have sold property belonging to his mother abroad to clear his mother’s estate.
oWhat did she do while she was abroad?Find out what actually occurred when the refugee or asylee was abroad. A long trip in the country of feared persecution may have been to take care of a sick relative who eventually passed away and then the estate had to be handled.
oHow long was she in each country that she visited? – Trips of long duration to the country of feared persecution are a cause for concern.
oWhat documents did she use to travel? – Travel on the passport of the country of feared persecution or nationality will raise issues. Travel without a refugee travel document may also cause an immigration official to probe further.
✓Arrests – Any arrest no matter how minor should be investigated. Under immigration law, criminal offenses that may seem minor may nevertheless have serious consequences including exposing an asylee or refugee to a loss of status and removal from the US. Sometimes a refugee or asylee was arrested and might not know it. When asking questions about arrests, ask it in the most simple and general terms. Questions like, have you ever been stopped by the police, have you ever been to a police station, have the police ever taken your photograph or fingerprints, or have you ever been in a police car help the legal representative to get a better understanding as to whether a refugee or asylee was arrested. If it is unclear whether a refugee or asylee was arrested perform a criminal background check with the state criminal records agency or the FBI.
Obtain a certificate of disposition for all arrests. Examine each disposition to determine whether the outcome of the arrest would be an inadmissibility issue. Analyzing the immigration consequences of criminal activity is very difficult and there are a number of resources a legal representative can consult. For example, the Immigrant Defense Project’s website (immigrantdefenseproject.org) has a wealth of materials on interpreting federal and state criminal laws in an immigration context.
✓Terrorist-Related Grounds of Inadmissibility – Most TRIG findings will be based on information that is already in the A-file or is admitted on a subsequent application. A good place to start is to review the I-590 refugee application or the I-589 asylum application to learn what information USCIS already has on the potential applicant. These documents contain information on the refugee claim, which may relay hints about material support, weapons training, or military service, or on group memberships. A refugee will not have a copy of the I-590, so a legal representative will have to file a FOIA or ask the refugee to recall as best as possible the information contained on the form.
Also, ask refugees and asylees questions surrounding their refugee claim. Find out who the persecutor was, what the persecution entailed, and why the refugee or asylee was targeted. Inquire about any groups or organizations with which the refugee or asylee was involved and what type of activities these groups or organizations conducted. Inquire about weapons training, using weapons, and military or police service..
✓Derivative Asylee– Determine if the asylee is a principal or derivative asylee by reviewing the asylum office or immigration judge’s decision. The adjustment requirements for derivative asylee are different from the principal asylee. If the derivative asylee is no longer considered a derivative, then a nunc pro tunc asylum application will have to be filed for the derivative asylee before being eligible to adjust[1].
If the principal dies,[1] a derivative child marries, derivative spouse divorces the principal, the
principal naturalizes or the derivative child is not covered by the CSPA, then the derivative
asylee will need to file a nunc pro tunc asylum application before adjusting.
✓Derivative Refugee - Although a derivative refugee does not have to continue to be a derivative to adjust status and will not need to file a nunc pro tunc asylum application to adjust, examine the relationship between the derivative and the principal refugee. In some instances the relationship between the derivative and principal may have never actually existed, which may jeopardize the derivative refugee’s status. While the adjustment application is being adjudicated, the grant of derivative refugee status may be questioned.
✓Immigration History – A refugee or asylee’s immigration history has a bearing on adjustment eligibility. It is important to screen refugees and asylees alike for immigration history regardless of how long they have been in the US. These tips foster a thorough screening of immigration history:
oPrevious Filings - Review all previously filed immigration applications and petitions, if available, or inquire about previously filed applications and petitions.
oConsistency on Immigration Forms - Inquire about names used and family composition on previous immigration applications. In some instances, a refugee may not have listed a child on the refugee application, but later wants to list the child on the adjustment application. This could pose problems related to misrepresentation.
oInteractions with Immigration Courts and USCIS Officers - Call the EOIR’s automated immigration court information system at 1-800-898-7180 to receive information about any removal or deportation case history. Have the refugee or asylee’s A-number readily available when calling. Question the refugee or asylee about whether they have ever appeared in any immigration court or at any immigration interview.
oEntry and Exit Questioning - Ask questions related to previous entry and exits to and from the US specifically focusing on whether the refugee or asylee was ever referred to secondary inspection.
✓Fees – Only asylees are required to pay the adjustment application and biometrics fees. Asylees are eligible to file for a fee waiver so inquire about the asylee’s receipt of means-tested public benefits,[2] annual income,[3] and financial hardship.[4]
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[1] When a principal asylee dies and a derivative asylee cannot establish the requisite relationship for adjustment of status INA §204(l) permits approval of an adjustment application if the derivative asylee: 1. resided in the US when the principal died; 2. continues to reside in the US on the date of the decision on the pending application; and 3. is a derivative asylee under INA §208(b)(3). Section 204(l) applies to cases adjudicated on or after October 28, 2009. It does not waive any eligibility requirements or bars to approval of an application other than the lack of a qualifying relative due to death.
[2] For a list of means-tested public benefits, see Form I-864P, Poverty Guidelines.
[3] Annual income that is below 150% of the Federal Poverty Guidelines automatically qualifies an asylee for a fee waiver. See Form, I-912P, HHS Poverty Guidelines for Fee Waiver for income levels.
[4] A financial hardship inquiry should cover monthly income, monthly expenses, medical costs, ancillary costs, health factors, ability to work, education, and any other factors that may affect a person’s financial situation.
[1]I think we want to incorporate derivative refugees because sometimes the underlying relationship doesn't exist to support derivative status