Six Questions on Refugee/Asylee Status
Under the INA refugees and asylees adjust their status under INA § 209 and not under § 245. Refugees admitted into the U.S. can adjust their status to LPR after one year of continuous physical presence. INA 209(a)(1), 8 U.S.C. 1159(a)(1), 8 C.F.R. 209.1.
There is a presumption of abandonment of residency if a person is out for 6 months or more in a year which is rebuttable. However one year outside the country is an abandonment subject to being put in removal proceedings and documentation may be insufficient ( such as job, taxes, home mortgage ) to show that residency was not abandoned. UNDER NO CIRCUMSTANCES SHOULD AN ASYLEE RETURN TO HIS OR HER HOME COUNTRY AS THIS WILL BE CONSIDERED REAVAILMENT AND CAN LEAD TO REMOVAL PROCEEDINGS
I would recommend filing for LPR status immediately after the one year following the provisions below, and filing for a Form I-131 to travel.
8 C.F.R. 209.1:
(b) Application. Upon admission to the United States, every refugee entrant shall be notified of the requirement to submit an application for permanent residence 1 year after entry. An application for the benefits of section 209(a) of the Act shall be filed on Form I-485, without fee, with the director of the appropriate Service office identified in the instructions which accompany the Form I-485.
Any travel outside the United States by refugees and asylees should be carefully analyzed before giving advice or assistance. Asylees and derivative asylees may not travel outside the United States unless they have been provided with a Refugee Travel Document, Form I-571. This is a passport-like, blue booklet that is valid for one year. The application for this document is made on Form I-131, Application for Travel Document. Send the completed form, along with proof of asylee status, two photos, and a filing fee of $165 to the NSC.
The asylee must not have intended to abandon asylee status and must have been outside the United States for less than one year. Even if the asylee is re-admitted with the travel document, he or she will be subject to examination and questioning regarding those grounds of inadmissibility that would also constitute grounds for termination of asylum, such as commission of an aggravated felony or being a national security threat.
Traveling While Application is Processed:
In order to travel outside of the U.S. while an LPR application is being processed, the alien may use a Form I-131, to apply for a refugee travel document.
Refugee Travel Document / Re-entry Permit:
LPR status as a result of admission as a refugee or a grant of asylum allows for the application of a Refugee Travel Document or a re-entry Permit.
Re-entry permits are required if you are a LPR and plan to travel outside the U.S. for more than one year. The permit allows LPRs to remain outside the U.S. for up to two years without impacting their status. If a re-entry permit is not obtained USCIS may consider your status abandoned. The traveler must contact the country of travel to check if a visa will be granted, and submit a Form I-131, Application for Travel Document.
2. Can you visit the embassy of your home country in the U.S. before getting your Green Card? Will this negatively affect your chances of becoming a LPR?
No, absolutely not as this is considered reavailment and thus abandonment of your refugee or asylee status. It also can result in denial of your green card and even after your green card has been obtained returning home can result in denial of your citizenship in some circumstances.
3. What can you do if you had a fear of claiming a spouse for your grant of asylum but want to claim her when applying to adjust your status?
If an asylee feared or forgot to claim their spouse when applying for asylum on the I-589 application, they can still claim the spouse as a derivative asylee. The principal asylee can still claim the spouse even if he/she is not currently in the United States. The principal must file a Form I-730, Refugee/Asylee Relative Petition, within two years of obtaining asylum. Petitions can also be filed after two years for extreme humanitarian reasons.
The asylee must have been married at the time he/she was granted asylum and the marriage must continue to exist until the I-730 is approved.
In practice however it is necessary to explain why this was not done and could result in a denial of the I-730 petition for a derivative spouse or child. It is certainly best to consult an immigration attorney to respond on this as each case is different.
4. Can a refugee/asylee use a World Passport to travel out of the county/ as a form of identification before or after receiving their green card?
World Passport is not recognized by the United States as a proper form of identification or proper travel document. Around 150 nations have accepted, on at least one occasion, a World Passport on a “de facto” basis. Six nations offer official, “de jure”, recognition of the World Passport.
The State Department mentions WSA World Passports in their Foreign Affairs Manual: “World Service Authority Passports are not acceptable as ‘passports’ for visa issuing purposes … the document is a 40-page, passport-size document with a bright blue cover with gold lettering.”
Only a refugee travel document issued by Homeland Security is the correct document to use for travel. This must be applied for before departure from the US and must be used to reenter the US. Again this should not be used for return to the country from which the asylum was granted.
5. Can a refugee/asylee work for the U.S. government abroad, without affecting their continuous residence when applying for the Green Card or for citizenship?
Yes. Under section 316 of the INA, paragraph (b), any LPR who has been lawfully admitted and present in the U.S. uninterrupted for at least one year, “and who thereafter is employed by or under contract with the Government of the United States or an American institution of research recognized as such by the Attorney General…no period of absence from the United States shall break the continuity of residence if…”
Paragraph (f) waives the residence and physical presence requirements for naturalization if the alien is determined to have made an extraordinary contribution to the national security of the U.S. or to the conduct of the U.S. intelligence activities.
A reentry permit that looks like a passport would need to be applied for before leaving and would need to be used to reenter the country. These can be issued in two year increments. However, again it is prudent to consult a lawyer as circumstances and job positions vary on this and expert advice for specifics is needed.
6. If a refugee/asylee has lost their I-94 card but has a copy, should they still apply for a replacement even after receiving their Green Card?
The I-94 is used to record the departure and arrival of aliens. Generally, in order to travel to a foreign nation you will need to present a refugee travel document or your foreign passport. Upon return to the United States the LPR can enter with a valid Green Card. It may still be of interest for the refugee/asylee to apply for a replacement even after receiving their Green Card if they have lost their Green Card or if it has expired.
In some instances the I-94 can be used as temporary proof of LPR status.
Quoting from Etuk v. Slattery, a Second Circuit case:
“Moreover, in our view, the “Arrival Record” possesses the same attributes as a passport stamped with the “Temporary I-551” legend. The district court expressed no concern about the adequacy of a stamped passport. Indeed, in reference to the “Departure Record” (the form that has the inaccurate information printed on its reverse side), the district court stated:
The front of the I-94, when so stamped [with the Temporary I-551 legend], with a photograph obscuring the words “Departure Record”, would satisfy the statutory requirements for an “alien registration card” or “resident alien card.” 8 U.S.C. § 1324a (b)(1)(B)(v). A concern for fraudulent green card applications is a rational basis for limiting the card’s validity to the interim period while INS processes and verifies applications.” (Emphasis in original). Etuk v. Slattery, 936 F.2d 1433, 1446 (2nd Cir. 1991).
Under 8 C.F.R. 264.1(h):
(h) Temporary evidence of registration. Form I-94, appropriately endorsed, may be issued as temporary evidence of registration and lawful admission for permanent residence to a lawful permanent resident alien who is departing temporarily from the United States and has applied on Form I-90 for issuance of Form I-551, if the district director is unable to issue and deliver the Form I-551 prior to the alien’s contemplated return to the United States. The alien shall surrender such Form I-94 to the Service upon receipt of Form I-551.
Furthermore, under 8 C.F.R. 264.1 (i) the copies can be retained for use by attorneys and representatives for informational purposes.
In practice, it is best to send the attorney a copy of both the green card stamp ( I-551) and of the green card itself so that if they are lost in travel the attorney can pursue the matter with the Embassy or Consulate of the particular country. The I-94 is NOT needed once the stamp or green card has been obtained and is normally retained by CBP or CIS.