Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and Unmarried Children of a Refugee/Asylee

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]

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