[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Proposed Rules]
[Pages 35984-35987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17265]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 207 and 208
[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: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service (Service) regulations by providing procedures which must be
followed by a refugee to bring his/her spouse and unmarried, minor
child(ren) (derivatives) into the United States. This proposed rule is
intended to respond to the family reunification needs of refugees by
establishing an equitable and consistent following-to-join policy for
refugees which parallels the current following-to-join procedures for
asylees. This rule also proposes to amend 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: Written comments must be submitted on or before September 9,
1996.
ADDRESSES: Please submit written comments, in triplicate, to the Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street, NW., Room 5307, Washington, DC 20536, Attention:
Public Comment Clerk. To ensure proper handling, please reference INS
No. 1639-93 on your correspondence. Comments will be available for
public inspection at this location by calling (202) 514-3048 to arrange
an appointment.
FOR FURTHER INFORMATION CONTACT: 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:
A. Background
The United States refugee program places strong emphasis on family
reunification and assigns priority for interviews to those refugee
applicants who have immediate family members already in the United
States. This emphasis on reunifying families also extends to those
refugees who have been resettled in the United States, but who remain
separated from their spouse and/or child(ren). In such cases, refugees
may file to have their spouse and/or child(ren) ``follow-to-join'' them
in the United States. The following-to-join provisions for refugees is
found in section 207(c)(2) of the Immigration and Nationality Act
(Act).
To apply for such benefits, refugees file Form I-730, Refugee/
Asylee Relative Petition, with the designated Service office. Such
designation will be through separate action in the Federal Register.
Spouses and unmarried, minor children (derivatives) who follow-to-join
a refugee already in this country are admitted as refugees.
B. Need for Procedural Review and Revised Regulation
Over the past year, it has become apparent that existing Service
procedures regarding following-to-join benefits for refugees is
inadequate and has resulted in confusion for the general public.
Regulations are necessary to clarify procedures and to establish an
equitable and consistent following-to-join policy for refugees which
parallels that found in the current following-to-join regulations for
asylees, who are also eligible to file Form I-730.
In recent months the Service has received numerous telephone
inquiries from members of Congress, the general public, voluntary
agencies, and attorneys representing clients concerning the application
of the following-to-join provisions found in section 207(c)(2) of the
Act. Of primary concern has been the Service's requirement that the
refugee's relationship to the spouse and/or child predates the date on
which the refugee was granted refugee status. A Service memorandum
issued on January 8, 1987, defined this date as the date of tentative
approval, which has been interpreted by some as being the day of the
refugee's interview. That interpretation, however, has not received
Servicewide acceptance.
The Service's recent initiative to combine the Form I-730 with the
revised Form I-130 (Petition for Alien Relative), revealed differing
practices for processing following-to-join petitions filed by refugees
and those filed by aslyees. It was, therefore, determined that rather
than consolidate the forms, the Service needed to review and, if
necessary, revise existing policies relating to refugees and asylees.
C. Following-to-Join Issue
In the absence of a time limit on the following-to-join
regulations, individuals who entered the United States as conditional
entrants in the late 1970s and refugees in the early 1980s are filing
Form I-730 petitions for a spouse and/or child(ren). Following-to-join
benefits are available to help refugees make the difficult transition
to a new life with the support of their immediate family members. Forms
I-730 filed ten or more years after admission no longer serve the
purpose for which they were originally intended. Instead, they deplete
limited refugee admission numbers and refugee resettlement monies
needed for emerging refugee populations. The proposed regulations are
intended to respond more fully to the family reunification needs of
refugees, while establishing specific guidelines on the following-to-
join process.
Current interpretations of the following-to-join benefits for
refugees have created confusion for Service officers, attorneys,
refugees, and the general public. While some interpret following-to-
join eligibility based on the refugee's date of admission, current
practice requires the relationship to exist prior to the tentative
approval date of the principal's application for refugee status. The
Service determined that the current interpretation of following-to-join
for refugees is too restrictive since it requires a refugee to meet a
heavier burden for establishing a relationship with his/her spouse and
unmarried, minor child(ren), than is required by regulation for a
spouse and unmarried minor child(ren) of a citizen or lawful permanent
resident of the United States. To resolve this disparity, the Service
is adopting a more generous interpretation of the point at which a
qualifying relationship exists for following-to-join benefits. This
rule proposes that the refugee's date of admission be used to determine
following-to-join eligibility. A refugee will then be able to file a
separate Form I-730 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. The Service believes this
proposal reflects the intent of Congress to reunite refugees with their
families. Further, it alleviates inconsistencies in determining
eligibility as is currently encountered
[[Page 35985]]
because of the difficulty in determining the date of tentative
approval.
Additionally, the Service has found that the benefit accorded
asylees regarding children is too broad in that current asylum
regulations extend following-to-join benefits to children born to, or
adopted by, asylees at any point after the date of their approval. As a
result, this rule will amend existing asylum regulations by requiring
that, for purposes of filing a Form I-730, the asylee's relationship to
a child exists on the date the asylee is granted asylum.
Only refugees who entered the United States as principal aliens
will be eligible to file the Form I-730 for following-to-join benefits
for a spouse and/or each individual unmarried, minor child under this
proposed rule. Those individuals who have derived their refugee status
from the principal alien will not be eligible to file Form I-730.
Past practice has allowed for the adjudication of Form I-730 filed
by a son or daughter who claimed to be single in order to qualify as a
member of a parent's refugee case, and who then petitioned for his/her
spouse after arrival to the United States. As the proposed rule does
not permit the filing of a Form I-730 by derivatives, this type of
misrepresentation should be reduced. Only the spouse and unmarried,
minor child(ren) of a refugee may benefit under the proposed following-
to-join regulation.
Currently there is no established time to file for and receive
following-to-join benefits, either for asylees or refugees. The
proposed regulation will impose a 1-year time limit from the date of
the principal's admission, within which a refugee or asylee must file a
separate Form I-730 for each individual qualifying family member,
unless it is clearly established that compelling circumstances preclude
the timely filing of the application. Refugees or asylees who have
resided in the United States for more than 1 year when this regulation
becomes effective will be granted 1 year from the effective date of the
final regulation in which to file Form I-730 for following-to-join
benefits for their spouse and unmarried, minor child(ren). The Service
may, however, waive the 1-year limit when it is determined that
humanitarian reasons for extending the filing period exist. The 1-year
limit refers only to the filing of the Form I-730. Such limit is not
imposed on family members' travel to the United States, as the Service
is aware of the impediments which may delay family members' travel for
years following the refugee's arrival in the United States. The filing
of the Form I-730 will serve to notify the Service of a refugee's or
asylee's intent to have his/her spouse and/or child(ren) join him/her
in the United States. The approval of the Form I-730 shall remain valid
for the duration of the relationship to the refugee or 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.
The Service has established what it believes to be a reasonable
time limit on the filing of the Form I-730. It is further believed that
derivative benefits for spouses and children of refugees was intended
for the purpose of reuniting families and to avoid lengthy delays due
to visa quotas. Timely filings will expedite the reunification of
refugee families and ensure the removal of spouses and children of
refugees from a country subjecting them to persecution on the basis of
that relationship. Thus, refugees must file following-to-join petitions
within 1 year of the date of their admissions; asylees within 1 year of
being granted asylum status.
While the rule proposes necessary bounds, such as adding
eligibility requirements and establishing a filing period for
following-to-join benefits, it is liberal in defining the point at
which a qualifying relationship exists for this benefit. The proposed
rule will clarify the Service's following-to-join policy for Service
officers and the general public by standardizing refugee and asylee
following-to-join procedures.
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 the rule
will not have a significant economic impact on a substantial number of
small entities because it is administrative in nature and merely
imposes specific regulatory restraints, which parallel procedures
currently found in asylum regulations.
Executive Order 12866
This rule is not 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, and the Office of Management and Budget
and waived its review process under section 6(a)(3)(A).
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.
The Commissioner of the Immigration and Naturalization Service
certifies that she has assessed this rule in light of the criteria in
Executive Order 12606 and has determined that this regulation will
enhance family well-being by establishing an equitable and consistent
following-to-join policy for refugees which parallels the current
following-to-join policy for asylees.
Paperwork Reduction Act
The information collection requirement (Form I-730) contained in
this rule is being revised by the Immigration and Naturalization
Service. In accordance with the Paperwork Reduction Act, the Service
published a notice in the Federal Register on May 3, 1996, at 61 FR
19958, notifying the public of the revision to the Form I-730.
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.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 207--ADMISSION OF REFUGEES
1. The authority citation for part 207 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1157, 1159; 8 CFR Part 2.
Sec. 207.1 [Amended]
2. Section 207.1 is amended by removing paragraph (e).
Secs. 207.7 and 207.8 [Redesignated as Sec. 207.8 and Sec. 207.9]
3. Sections 207.7 and 207.8 are redesignated as Sec. 207.8 and
207.9 respectively.
4. 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
[[Page 35986]]
Act, may 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 of 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;
(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;
(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 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 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 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. Persons who derive their
refugee status from the principal applicant are not eligible to file
Form I-730. The Form I-730 may only be filed by the principal
applicant. Family members, such as unmarried sons and daughters 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 within 1 year of the refugee's
admission to the United States, unless the Service determines that the
filing period should be extended for humanitarian reasons. There is,
however, no time limit imposed on family members' travel to the United
States once the Form I-730 for following-to-join benefits has been
approved, provided 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 following-to-join benefits. Where possible this
will consist of the documents specified in Sec. 204.2(a)(1)(i)(B),
(a)(1)(iii)(E), (a)(2), (d)(2), and (d)(5) of this chapter. In
addition, a recent photograph of each derivative must accompany the
Form I-730. Although the photograph need not meet Alien Documentation
Identification and Telecommunication System (ADIT) specifications, it
must clearly identify the derivative. The photograph 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 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 and
asylee relative petition proceedings, if the refugee establishes
eligibility for the following-to-join benefits contained in this part.
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION
5. The authority citation for part 208 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C.
9701; 8 CFR part 2.
6. In Sec. 208.21, paragraphs (b), (c), (d), and (f) are revised to
read as follows:
Sec. 208.21 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. 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 follow-to-join the asylee.
The child's mother, if not the principal asylee, shall
[[Page 35987]]
not be eligible to follow-to-join the principal asylee unless the
child's mother was the principal asylee's spouse on the date of the
principal asylee's grant as an asylee.
(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 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. The Form I-
730 must also be accompanied by a recent, clear non-ADIT style
photograph for each derivative. The photograph will be used for
identification purposes and will be placed in the derivative's
immigration record. Additionally, a separate Form I-730 must be filed
by the asylee for each qualifying family member within 1 year of the
date in which he/she was granted asylum status, unless it is determined
by the Service that this 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 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. The Form I-730 must be accompanied by a recent, clear non-
ADIT style photograph for each derivative. A separate Form I-730 for
each qualifying family member must be filed within 1 year of the date
in which the asylee was granted asylum status, 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 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 beneificary 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)(E), (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.
* * * * *
Dated: May 7, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-17265 Filed 7-8-96; 8:45 am]
BILLING CODE 4410-10-M
