Adjudication of Refugee Relative Petition
Adjudication of I-730 Refugee Relative Petition
Date: August 27, 1996
To: Service Center Directors
From: Benefits Division
Section 207(c)(2) of the Immigration and Nationality Act (INA) provides that spouses and children of persons who qualify for admission as refugees under section 207(c)(1) shall be granted the same admission status as such refugee if accompanying or following-to-join the principal refugee. In order to apply for derivative refugee status, the principal refugee must file an I-730 refugee relative petition on behalf of his spouse and children. The purpose of this memorandum is to direct the Service Center to implement certain policy changes concerning the adjudication of I-730 refugee relative petitions.
I. Relationship
The Immigration and Naturalization Service (INS) has recently come under scrutiny in connection with its current policy concerning the point at which the familial relationship must exist in order for a spouse or child of a refugee to be eligible for derivative refugee status. The current practice has been that the birth or adoption of the child or the marriage between the principal alien and the beneficiary spouse must have occurred prior to the approval of the principal’s refugee status in order for the beneficiary to be eligible for derivative refugee status. See O.I. Section 207.8(a). Although the current practice is legally permissible, the INS has, for some time now, considered a change in policy that would require only that the relationship exist at the time of the principal alien’s admission to the United States. Additionally, the INS has sought to address the question of eligibility for derivative refugee status of children of refugees that were in utero at the time of the principal’s admission.
In order to address these concerns, the INS has adopted the following policy for adjudicating refugee relative petitions:
Notwithstanding Operating Instruction 207.8(a), the relationship of a spouse and child as defined in sections 101(a)(35) and 101(b)(1)(A)(B)(C), or (E), respectively, of the Act, must have existed prior to the refugee’s admission to the United States and must continue to exist at the time of filing for following-to-join benefits and admission to the United States. If the refugee proves that the refugee is the parent of a child who was born after the refugee’s admission as a refugee, but who was in utero on the date of the refugee’s admission as a refugee, the child shall be eligible to follow-to-join the refugee. The child’s mother, if not the principal refugee, shall not be eligible to follow-to-join the principal refugee unless she was the principal refugee’s spouse on the date of his admission as a refugee.
Service Center adjudicators are directed to apply this policy immediately when adjudicating I-730 petitions filed on behalf of spouses and children or refugees. This directive applies to I-730 petitions currently pending, as well as new filings, and includes filings by petitioners who may have previously filed and been denied. Anyone who inquires regarding a petition that has been previously denied on these grounds should be advised to file a new I-730 petition, since previously denied petitions will not be readjudicated. This directive will remain in effect for I-730 petitions filed within one year after the date of its issuance, unless the directive is superseded by another directive or by the publication of the Final Rule on following-to-join benefits.
II. Principal Refugee
Section 207(c)(2) of the INA provides for the admission of spouses and children (as defined in section 101(b)(1)(A)(B),(C),(D), or (E)) of a refugee qualifying for admission under 207(c)(1). Accordingly, only a principal refugee, admitted under 207(c)(1), may file an I-730 on behalf of his or her spouse or child. It has come to our attention, however, that some individuals who have been admitted under 207 have been treated as derivatives, even though they do not meet the statutory definition of spouse or child. These individuals are sometimes designated with the admission code “RE-4.” Since they are not derivatives, as defined in subsection 207(c)(2), they should be treated as principal refugees for the purpose of filing I-730s on behalf of their spouses or children.
Under section 207(c)(2), however, true derivatives (the principal refugee’s spouse and unmarried children under 21) continue to be ineligible to file I-730s for their derivatives. These individuals are generally designated with the admission code “RE-2” for spouses or “RE- 3” for children.
Michael AytesAssistant Commissioner for Benefits Division