[Federal Register Volume 63, Number 17 (Tuesday, January 27, 1998)]
[Rules and Regulations]
[Pages 3792-3803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1879]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 207, 208, and 299
[INS No. 1639-93]
RIN 1115-AD59
Procedures for Filing a Derivative Petition (Form I-730) for a
Spouse and Unmarried Children of a Refugee/Asylee
AGENCY: Immigaration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends the Immigration and Naturalization
Service (Service) regulations by providing specific guidelines on the
procedures which must be followed by a refugee or asylee to bring his/
her spouse and unmarried, minor child(ren) (derivatives) into the
United States. This rule responds to the family reunification needs of
refugees by establishing an equitable and consistent derivative policy
for refugees which parallels the current derivative procedures for
asylees. This rule also amends asylum regulations by removing from the
definition of qualifying relationship child(ren) born to, or legally
adopted by, the principal alien and spouse after approval of the
principal alien's asylum application.
DATES: This rule is effective February 26, 1998.
FOR FURTHER INFORMATION CONTACT: Suzy Nguyen or Ramonia Law-Hill,
Senior Adjudications Officer, Adjudications Division, Immigration and
Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC
20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION: On July 9, 1996, the Service published a
proposed rule in the Federal Register at 61 FR 35984, providing
procedures that must be followed by a refugee or asylee to bring his or
her spouse and unmarried, minor child(ren) (derivatives) into the
United States.
The proposed rule was designed to respond more fully to the family
reunification needs of refugees, while establishing specific guidelines
on the derivative policy for both refugees and asylees. First, the
proposed rule allowed the Service to use the refugee's date of
admission into the United States to determine accompanying or
following-to-join eligibility for his/her spouse and unmarried, minor
child(ren). A refugee would be able to file a Form I-730, Refugee/
Asylee Relative Petition, for his/her spouse and/or each individual
child if the relationship predates the refugee's date of admission to
the United States, rather than the date of interview or tentative
approval date of the application. This eligibility would extend to a
child who is in utero on the date of the refugee's admission to the
United States but is born after the refugee's admission as a refugee.
Second, the proposed rule imposed a 1-year time limit from the date
of the principal refugee's admission to the United States within which
he or she must file a Form I-730 for his/her spouse and/or each
individual child, unless the Service determined that the filing period
should be extended for humanitarian reasons. Similarly, the principal
asylee would be required to file a Form I-730 for each qualifying
family member within 1 year of the date on which he or she was granted
asylum status, unless the Service determines that the filing period
should be extended for humanitarian reasons.
Third, the proposed rule required that only an alien who was
admitted to the United States as a principal refugee would be eligible
to file the Form I-730 for accompanying or following-to-join benefits
for his/her spouse and/or unmarried, minor child(ren). Those
individuals who derived their refugee status from the principal refugee
would not be eligible to file a Form I-730.
Fourth, the proposed rule would amend the asylum regulations by
requiring that, for purposes of filing a Form I-730, the asylee's
relationship to a child must have existed at the time of approval of
the asylum application.
Finally, the proposed rule added certain documentary and
evidentiary requirements for filing a Form I-730, such as requiring
that a separate Form I-730 be filed for each individual qualifying
family member and that a photograph of the derivative be included.
These proposed regulations served to clarify the Service's accompanying
and following-to-join policy for Service officers and the general
public by standardizing refugee and asylee derivative procedures.
The Immigration and Naturalization Service allowed a 60-day public
comment period which ended on September 9, 1996. The Service received
19 comments on the proposed rule. The following is a discussion of
those comments and the Service's response.
Discussion of Comments
Using the Principal Refugee's Date of Admission To Determine Derivative
Eligibility
The Service proposed that the principal refugee's date of admission
into the United States be used to determine accompanying or following-
to-join eligibility for his/her derivatives. Current regulations
require that the refugee's relationship to the spouse or child exist
prior to the tentative approval date of the principal's application for
refugee status. Furthermore, according to the proposed rule, if the
refugee proves that he/she is the parent of a child who was born after
the refugee's admission to the United States, but who was in utero on
the date of refugee's admission as a refugee, the child shall be
eligible to accompany or follow-to-join the refugee.
Fourteen commenters praised and supported the Service's decision to
use the principal refugee's date of admission rather than date of
tentative approval. In addition, three commenters supported the
Service's proposed rule pertaining to children in utero. Only one
commenter was in opposition, claiming that the change would invite
exploitation and fraud.
The Service has carefully considered the one commenter's concern
regarding the possibility of fraud. The Service feels that the proposed
rule contains certain evidentiary and documentary requirements (such as
requiring a recent photograph of the spouse or child and
[[Page 3793]]
requiring evidence of the claimed relationship as set forth in 8 CFR
part 204) which may reduce the risk of fraud and exploitation.
Furthermore, the current interpretation of derivative eligibility for
refugees has created confusion for Service officers, attorneys and
representatives, refugees, and the general public. The Service believes
that this rule will alleviate inconsistencies in determining
eligibility that has been encountered due to the difficulty in
determining the date of tentative approval of the principal refugee's
application. In addition, the current interpretation is too restrictive
because it requires a refugee to meet a heavier burden for establishing
a relationship with his/her spouse and/or child(ren) than is required
by regulation for a citizen or lawful permanent resident of the United
States. Moreover, the Service believes that this rule reflects the
intent of Congress by enhancing family reunification for refugees.
One Year Filing Requirement
The proposed rule required that a separate Form I-730 must be filed
for each qualifying derivative within 1 year of the principal refugee's
admission to the United States, unless the Service determines that the
filing period should be extended for humanitarian reasons. Similarly,
the proposed rule required that a separate Form I-730 for each
qualifying derivative must be filed within 1 year of the date on which
the principal asylee was granted asylum status, unless the Service
determines that the filing period should be extended for humanitarian
reasons.
Twelve commenters opposed the 1-year time limit. Ten of those
claimed that 1 year is too short or unrealistic. Two commenters
suggested a minimum of 3 years, and one suggested that a more
reasonable time limit would be when the refugee/asylee becomes eligible
for U.S. Citizenship. Seven commenters argued that there is no time
restriction imposed in the Immigration and Nationality Act (``the
Act'') and that, therefore, the Service should not set a time limit.
Others noted that, since this is a newly imposed time limit, the
Service should ensure that refugees and asylees are well informed of
this filing requirement. Only one commenter agreed that the 1-year time
limit was reasonable.
Derivative benefits for refugees and asylees are intended to
expediently reunite families in order for them to make the difficult
transition to a new life with the support of their immediate family
members by avoiding lengthy delays due to visa quotas. The timely
filing of Form I-730 will expedite the reunification of refugee
families. At the moment, Service regulations on derivative benefits for
refugee and asylees contain no time limitation. As a result, there are
individuals who had entered the United States in the late 1970s or
early 1980s as refugees who did not file Form I-730 petitions for their
derivatives until ten or more years after their admission. Such filings
no longer serve the purpose for which they were originally intended
and, instead, only serve to deplete limited refugee admission numbers
and refugee resettlement monies needed for currently emerging refugee
populations. In determining the filing time limitation for Form I-730,
the Service acknowledges that it must be responsive to the needs of the
applicant base.
After careful consideration of the comments received, the Service
is modifying the proposed rule with regard to the 1-year time limit.
Accordingly, the final rule requires that the Form I-730 must be filed
within 2 years of the date of admission to the United States for a
refugee, or within 2 years of the grant of asylum for an asylee.
Although the Service believes that 1 year is a reasonable time limit
for refugees and asylees to file the Form I-730, the Service would like
to acknowledge and address the commenters' concerns by adopting this
change. Therefore, the filing of the Form I-730 within 2 years of
admission as a refugee or grant of asylum will serve to notify the
Service of a refugee's or asylee's intent to have his/her derivative(s)
join him/her in the United States. The Service has also carefully
reviewed the provisions of section 207(c)(2) of the Act and has
determined that the establishment of a filing period does not violate
the language or intent of that section of the Act.
Five commenters argued that, since the proposed rule did not define
which ``humanitarian reasons'' warranted an extension of the filing
deadline, this would lead to arbitrary and conflicting decisions by
Service officers, or create a large category of applicants under this
exception. On the contrary, the Service believes that defining the
specific qualifying ``humanitarian reasons'' would only act to restrict
severely the category and shut the door on applicants who need this
exception most. As with other immigration benefits, applications should
be decided on a case-by-case basis. Likewise, although humanitarian
exceptions are used throughout other Service regulations, the term is
not defined so that individuals with exceptional cases are not shut
out. The Service will make continual assessments of the processing of
the I-730 petitions, particularly in the early stages of the
promulgation of this rule, and provide guidance to Service officers, if
necessary, in order to ensure uniformity in the decision process.
Ten commenters noted that the Service should have some type of
grandfather clause to allow petitioners whose Forms I-730 were denied
under the old regulations to refile or reopen their cases. Five
commenters pointed out that, although the introductory comment to the
proposed rule had indicated that refugees and asylees in the United
States for more than 1 year when the regulation becomes effective would
be given 1 year to file, this provision was not put in the proposed
regulation itself. Furthermore, the proposed rule failed to address
refugees and asylees who have been in the United States for less than 1
year at the time the regulation becomes effective.
The Service agrees with the commenters who expressed the need for
some type of grandfather clause. The Service is also grateful to those
commenters who spotted the inadvertent omission. In response to these
comments, the Service is including a grandfather clause in the final
rule which allows all persons admitted as refugees or granted asylum
prior to the effective date of the final rule to file the Form I-730
within 2 years of that effective date regardless of when they were
admitted as a refugee or granted asylum. This will allow refugees and
asylees an equal opportunity to apply for derivative benefits for their
spouse and/or child(ren). A principal refugee who had previously
submitted the Form I-730 but was denied because of current regulations
requiring the relationship with his/her derivative(s) to have existed
prior to the tentative approval date of his/her application for
refugees status should reapply by submitting Form I-730 for each
individual derivative within 2 years of the effective date of the final
rule. It is noted that petitioners must reapply in these situations
since the Service will not sua sponte reopen previously denied files.
In order to better inform the general public, the Service is including
the grandfather clause in the instructions part of the revised Form I-
730 to inform all potential refugee and asylee petitioners that they
have either 2 years from the date on which the final rule becomes
effective or 2 years after the date of admission (for refugees) or
grant of asylum (for asylees), whichever is later, to file the Form I-
730.
[[Page 3794]]
Only the Principal Refugee May File a Form I-730
Similar to current regulations, the proposed rule required that the
Form I-730 be filed by the principal refugee. Individuals who have
derived their refugee status from the principal refugee are not
eligible to file a Form I-730.
Ten commenters opposed the Service's requirement that only the
principal refugee may file the Form I-730. Four commenters claimed
that, because of the refugee registration systems used overseas,
certain refugees may be inadvertently labeled as a derivative when he/
she does not fit the definition of a derivative spouse or child and, in
fact, should be considered a principal for the purposes of filing the
Form I-730. Two commenters argued that any refugee who does not meet
the statutory definition of a ``derivative'' should be allowed to file
the Form I-730. Several commenters stated that if the purpose of the
principal applicant rule is to deter fraud, then it is overbroad and,
as such, violates the intent and language of the Act. One commenter
expressed the need for a humanitarian exception in the case where the
principal refugee is deceased or incapacitated, becomes abusive, or
abandons his/her family after the derivative spouse has reached the
United States, in order to allow the derivative spouse to petition for
their mutual child(ren). Another commenter stated that the regulation
should allow for the child of an unmarried parent to accompany or
follow-to-join him/her even if the parent had obtained his/her refugee
status on a derivative basis.
The Service has carefully considered their comments and has
reviewed the language of the Act at sections 207 (c)(1) and (c)(2). The
requirement that only the principal refugee may file for accompanying
of following-to-join benefits for his/her spouse and/or child(ren) may
be ascertained from the language of sections 207 (c)(1) and (c)(2) of
the Act. Section 207(c)(2) provides for the admission of spouses and
children (as defined in section 101(b)(1) (A), (B), (C), (D), or (E) of
the Act) of a refugee qualifying for admission under section 207(c)(1)
of the Act. Accordingly, only a principal refugee, admitted under
section 207(c)(1) of the Act, may file a Form I-730 on behalf of his or
her spouse or child(ren). The Service already regards persons admitted
under section 207 who do not meet the statutory definition of a spouse
or child to be principals for the purpose of filing an I-730 petition.
Eight commenters stated that the proposed rule was confusing in its
use of the terms ``principal refugee,'' ``principal applicant,'' and
``principal alien.'' The Service agrees with these comments and has
removed the term ``principal applicant'' from the final rule in order
to avoid any confusion.
Eligible and Ineligible Relatives of a Refugee/Asylee
The Service listed in proposed Sec. 207.7(b) relatives of refugees
who are ineligible for accompanying or following-to-join benefits,
which included: a spouse or child who has previously been granted
asylee or refugee status; an adopted child, if the adoption took place
after the child became 16 years old, or if the child has not been in
the legal custody and living with the parent(s) for at least 2 years; a
stepchild, if the marriage that created this relationship took place
after the child became 18 years old; a husband or wife if each/both
were not physically present at the marriage ceremony and the marriage
was not consummated, or if the U.S. Attorney General has determined
that such alien has attempted or conspired to enter into a marriage for
the purpose of evading immigration laws; and a parent, sister, brother,
grandparent, grandchild, nephew, niece, uncle, aunt, cousin or in-law.
Six commenters put forth various arguments for the inclusion of
certain relatives as eligible accompanying or following-to-join
derivatives of a refugee or asylee. Four commenters stated that some
type of exclusion should be made for a child of a derivative child. Two
commenters claimed that relatives listed in proposed Sec. 207.7(b)(6)
(i.e., parent, sibling, grandparent/child, nephew/niece, uncle/aunt,
cousin, and in-law) should be included as derivative refugees when they
are dependent on the principal refugee and reside in his/her household.
One commenter argued that barring the mother of the principal alien's
child because the principal was not married to the child's mother is
harsh and irrelevant. Another claimed that eligible ``accompanying
derivative'' should include relatives of the principal petitioner's
spouse, or the principal petitioner's child. One commenter pointed out
that many children in agrarian or less-developed societies are
customarily adopted without legal formalities; therefore, people should
be allowed to present proof that they were the actual custodial
guardian of the child for the requisite minimum of 2 years, to petition
for the child as a derivative refugee, and then complete the legal
adoption formalities in the United States.
The Service has carefully considered these comments. However,
section 207(c)(2) of the Act clearly specifies that only a ``spouse or
child (as defined in section 101(b)(1) (A), (B), (C), (D), or (E))'' of
a refugee shall be eligible for accompanying or following-to-join
benefits. Accordingly, the Service has deemed ineligible those
relatives who do not fit the statutory definition of a spouse and child
as defined in sections 101(a)(35) and 101(b)(1) (A), (B), (C), (D), or
(E), respectively, of the Act.
Evidentiary and Documentary Requirements
The proposed rule required that a separate Form I-730 must be filed
for each qualifying family member, which must also include a recent
photograph of this family member. The petitioning refugee or asylee has
the burden to establish by a preponderance of the evidence that the
person for whom he/she is petitioning is an eligible spouse or child.
The evidence to establish the claimed relationship for a spouse or
unmarried, minor child as set forth in 8 CFR part 204 must be submitted
with the Form I-730; where possible, this will consist of the documents
specified in Sec. 204.2(a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2),
and (d)(5). No fee is charged for filing a Form I-730 petition.
Three commenters opposed the proposed requirement that a separate
Form I-730 must be filed for each family member. Four commenters
claimed that the photograph requirement is too restrictive and
unrealistic. Six commenters argued that the heightened evidence needed
to prove spousal relationship should only apply in situations where
Congress has expressed the fear of marriage fraud, which would not
include refugees cases. In addition, five commenters stated that the
``where possible'' language of the proposed rule is vague and,
therefore, may result in arbitrary decisions by Service officers.
The Service has carefully considered the comments. However, the
Service believes that the evidentiary and documentary requirements are
reasonable. First, having a separate Form I-730 for each family member
will enhance efficiency and facilitate Service processing of the
petition, especially in cases where there are many derivatives and/or
they are residing in different geographic locations. Since each
derivative has a separate I-730, each petition may be processed on its
own without having to wait for the rest of the family members. Second,
the photograph required of each derivative need not meet Alien
Documentation Identification and Telecommunication
[[Page 3795]]
System (ADIT) specifications. The Service believes that it is not
overly burdensome to require a non-ADIT photograph. Third, the Service
believes that adopting the standard of evidence set forth in 8 CFR part
204 to establish a claimed relationship for a spouse or minor,
unmarried child is a reasonable requirement in light of the risk of
fraudulent petitions.
Finally, petitioners should note that although there is no appeal
from the denial of a petition filed on Form I-730, the denial shall be
without prejudice to the consideration of a new petition or motion to
reopen the refugee or asylee relative petition proceeding, if the
petitioner establishes eligibility for accompanying or following-to-
join benefits. This is consistent with other types of applications for
immigration benefits where no administrative appeal is available, but
the applicant may submit a new application or a motion to reopen in the
case of a denial (e.g., 8 CFR 204.2(a)(1)(iii)(D)).
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule is administrative in nature and merely
imposes specific regulatory restraints, which parallel procedures
currently found in asylum regulations. This rule will not result in an
annual effect on the economy of $100 million or more or adversely and
materially affect a sector of the economy, or cause major increases in
costs or prices for consumers, or have other adverse effects on the
economy in terms of productivity, competition jobs, the environment,
public health, or safety. Furthermore, the affected parties are not
small entities, and the impact of the regulation is not an economic
one.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to and,
approved by, the Office of Management and Budget.
Executive Order 12612
The regulations proposed herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Form I-730
The revised Form I-730 has been included at the end of this final
rule to allow the public to duplicate the form from the Federal
Register until the form is printed and distributed worldwide.
Paperwork Reduction Act
The information collection requirement (Form I-730) contained in
this rule has been submitted to and approved by the Office of
Management and Budget under the provisions of the Paperwork Reduction
Act. The clearance number for this collection is contained in 8 CFR
299.5
List of Subjects
8 CFR Part 207
Immigration, Refugees, Reporting and recordkeeping requirements.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 207--ADMISSION OF REFUGEES
1. The authority citation for part 207 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182, 8 CFR
part 2.
Secs. 207.7 and 207.8 [Redesignated as Sec. 207.8 and Sec. 207.9]
2. Sections 207.7 and 207.8 are redesignated as Sec. 207.8 and
Sec. 207.9 respectively.
3. A new Sec. 207.7 is added to read as follows:
Sec. 207.7 Derivatives of refugees.
(a) Eligibility. A spouse, as defined in section 101(a)(35) of the
Act, and/or child(ren), as defined in section 101(b)(1)(A), (B), (C),
(D), or (E) of the Act, shall be granted refugee status if accompanying
or following-to-join the principal alien. An accompanying derivative is
a spouse or child of a refugee who is in the physical company of the
principal refugee when he or she is admitted to the United States, or a
spouse or child of a refugee who is admitted within 4 months following
the principal refugee's admission. A following-to-join derivative, on
the other hand, is a spouse or child of a refugee who seeks admission
more than 4 months after the principal refugee's admission to the
United States.
(b) Ineligibility. The following relatives of refugees are
ineligible for accompanying or following-to-join benefits:
(1) A spouse or child who has previously been granted asylee or
refugee status;
(2) An adopted child, if the adoption took place after the child
became 16 years old, or if the child has not been in the legal custody
and living with the parent(s) for at least 2 years;
(3) A stepchild, if the marriage that created this relationship
took place after the child became 18 years old;
(4) A husband or wife if each/both were not physically present at
the marriage ceremony, and the marriage was not consummated (section
101(a)(35) of the Act);
[[Page 3796]]
(5) A husband or wife if the U.S. Attorney General has determined
that such alien has attempted or conspired to enter into a marriage for
the purpose of evading immigration laws; and
(6) A parent, sister, brother, grandparent, grandchild, nephew,
niece, uncle, aunt, cousin or in-law.
(c) Relationship. The relationship of a spouse and child as defined
in sections 101(a)(35) and 101(b) (1)(A), (B), (C), (D), 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 accompanying or following-to-join benefits and at the
time of the spouse or child's subsequent 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 accompany or follow-to-join the refugee. The
child's mother, if not the principal refugee, shall not be eligible to
accompany or follow-to-join the principal refugee unless the child's
mother was the principal refugee's spouse on the date of the principal
refugee's admission as a refugee.
(d) Filing. A refugee may request accompanying or following-to-join
benefits for his/her spouse and unmarried, minor child(ren) (whether
the spouse and children are in or outside the United States) by filing
a separate Form I-730 Refugee/Asylee Relative Petition, for each
qualifying family member with the designated Service office. The Form
I-730 may only be filed by the principal refugee. Family members who
derived their refugee status are not eligible to file the Form I-730 on
behalf of their spouse and child(ren). A separate Form I-730 must be
filed for each qualifying family member before February 28, 2000 or
within 2 years of the refugee's admission to the United States,
whichever is later, unless the Service determines that the filing
period should be extended for humanitarian reasons. There is no time
limit imposed on a family member's travel to the United States once the
Form I-730 has been approved, provided that the relationship of spouse
or child continues to exist and approval of the Form I-730 petition has
not been subsequently revoked. There is no fee for filing this
petition.
(e) Evidence. Documentary evidence consists of those documents
which establish that the petitioner is a refugee, and evidence of the
claimed relationship of the petitioner to the beneficiary. The burden
of proof is on the petitioner to establish by a preponderance of the
evidence that any person on whose behalf he/she is making a request
under this section is an eligible spouse or unmarried, minor child.
Evidence to establish the claimed relationship for a spouse or
unmarried, minor child as set forth in 8 CFR part 204 must be submitted
with the request for accompanying or following-to-join benefits. Where
possible this will consist of the documents specified in Sec. 204.2(a
(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of this chapter.
In addition, a recent photograph of each derivative must accompany the
Form I-730. The photograph must clearly identify the derivative, and
will be made part of the derivative's immigration record for
identification purposes.
(f) Approvals. (1) Spouse or child in the United States. When a
spouse or child of a refugee is in the United States and the Form I-730
is approved, the Service will notify the refugee of such approval on
Form I-797, Notice of Action. Employment will be authorized incident to
status.
(2) Spouse or child outside the United States. When a spouse or
child of a refugee is outside the United States and the Form I-730 is
approved, the Service will notify the refugee of such approval on Form
I-797. The approved Form I-730 will be sent by the Service to the
Department of State for forwarding to the American Embassy or Consulate
having jurisdiction over the area in which the refugee's spouse or
child is located.
(3) Benefits. The approval of the Form I-730 shall remain valid for
the duration of the relationship to the refugee and, in the case of a
child, while the child is under 21 years of age and unmarried, provided
also that the principal's status has not been revoked. However, the
approved Form I-730 will cease to confer immigration benefits after it
has been used by the beneficiary for admission to the United States as
a derivative of a refugee. To demonstrate employment authorization, the
Service will issue a Form I-94, Arrival-Departure Record, which also
reflects the derivative's current status as a refugee, or the
derivative may apply under Sec. 274a.12(a) of this chapter, using Form
I-765, Application for Employment Authorization, and a copy of the Form
I-797.
(g) Denials. If the spouse or child of a refugee is found to be
ineligible for derivative status, a written notice explaining the basis
for denial shall be forwarded to the principal refugee. There shall be
no appeal from this decision. However, the denial shall be without
prejudice to the consideration of a new petition or motion to reopen
the refugee or asylee relative petition proceeding, if the refugee
establishes eligibility for the accompanying or following-to-join
benefits contained in this part.
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
4. The authority citation for part 208 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
5. In Sec. 208.19, paragraphs (b), (c), (d), and (f) are revised to
read as follows:
Sec. 208.19 Admission of asylee's spouse and children.
* * * * *
(b) Relationship. The relationship of spouse and child as defined
in sections 101(a)(35) and 101(b)(1) of the Act must have existed at
the time the principal alien's asylum application was approved and must
continue to exist at the time of filing for accompanying or following-
to-join benefits and at the time of the spouse or child's subsequent
admission to the United States. If the asylee proves that the asylee is
the parent of a child who was born after asylum was granted, but who
was in utero on the date of the asylum grant, the child shall be
eligible to accompany or follow-to-join the asylee. The child's mother,
if not the principal asylee, shall not be eligible to accompany or
follow-to-join the principal asylee unless the child's mother was the
principal asylee's spouse on the date the principal asylee was granted
asylum.
(c) Spouse or child in the United States. When a spouse or child of
an alien granted asylum is in the United States, but was not included
in the asylee's application, the asylee may request accompanying or
following-to-join benefits for his/her spouse or child by filing for
each qualifying family member a separate Form I-730, Refugee/Asylee
Relative Petition, and supporting evidence, with the designated Service
office, regardless of the status of that spouse or child in the United
States. A recent photograph of each derivative must accompany the Form
I-730. The photograph must clearly identify the derivative, and will be
made part of the derivative's immigration record for identification
purposes. Additionally, a separate Form I-730 must be filed by the
asylee for each qualifying family member before February 28, 2000, or
within 2 years of the date in which he/she was granted asylum status,
whichever is later, unless it is determined by the Service that this
[[Page 3797]]
period should be extended for humanitarian reasons. Upon approval of
the Form I-730, the Service will notify the asylee of such approval on
Form I-797, Notice of Action. Employment will be authorized incident to
status. To demonstrate employment authorization, the Service will issue
a Form I-94, Arrival-Departure Record, which also reflects the
derivative's current status as an asylee, or the derivative may apply
under Sec. 274a.12(a) of this chapter, using Form I-765, Application
for Employment Authorization, and a copy of the Form I-797. The
approval of the Form I-730 shall remain valid for the duration of the
relationship to the asylee and, in the case of a child, while the child
is under 21 years of age and unmarried, provided also that the
principal's status has not been revoked. However, the approved Form I-
730 will cease to confer immigration benefits after it has been used by
the beneficiary for admission to the United States as a derivative of
an asylee.
(d) Spouse or child outside the United States. When a spouse or
child of an alien granted asylum is outside the United States, the
asylee may request accompanying or following-to-join benefits for his/
her spouse or child(ren) by filing a separate Form I-730 for each
qualifying family member with the designated Service office, setting
forth the full name, relationship, date and place of birth, and current
location of each such person. A recent photograph of each derivative
must accompany the Form I-730. The photograph must clearly identify the
derivative, and will be made part of the derivative's immigration
record for identification purposes. A separate Form I-730 for each
qualifying family member must be filed before February 28, 2000, or
within 2 years of the date in which the asylee was granted asylum
status, whichever is later, unless the Service determines that the
filing period should be extended for humanitarian reasons. When the
Form I-730 is approved, the Service will notify the asylee of such
approval on Form I-797. The approved Form I-730 shall be forwarded by
the Service to the Department of State for delivery to the American
Embassy or Consulate having jurisdiction over the area in which the
asylee's spouse or child is located. The approval of the Form I-730
shall remain valid for the duration of the relationship to the asylee
and, in the case of a child, while the child is under 21 years of age
and unmarried, provided also that the principal's status has not been
revoked. However, the approved Form I-730 will cease to confer
immigration benefits after it has been used by the beneficiary for
admission to the United States as a derivative of an asylee.
* * * * *
(f) Burden of proof. To establish the claimed relationship of
spouse or child as defined in sections 101(a)(35) and 101(b)(1) of the
Act, evidence must be submitted with the request as set forth in part
204 of this chapter. Where possible this will consist of the documents
specified in Sec. 204.2 (a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2),
and (d)(5) of this chapter. The burden of proof is on the principal
alien to establish by a preponderance of the evidence that any person
on whose behalf he or she is making a request under this section is an
eligible spouse or child.
* * * * *
PART 299--IMMIGRATION FORMS
6. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
7. Section 299.1 is amended by revising the entry for Form ``I-
730'' to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
----------------------------------------------------------------------------------------------------------------
Form No. Edition date Title
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
I-730........................... 01-07-98 Refugee/Asylee Relative Petition.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
8. Section 299.5 is amended by revising the entry for Form ``I-
730'' to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
----------------------------------------------------------------------------------------------------------------
Currently assigned
INS form No. INS form title OMB control No.
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
I-730.......................... Refugee/Asylee Relative Petition......................... 1115-0121
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
Dated: July 30, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
Note: The Form I-730, Refugee/Asylee Relative Petition, will not
appear in the Code of Federal Regulations.
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[FR Doc. 98-1879 Filed 1-26-98; 8:45 am]
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