Minutes of February 12, 2015 NSC Teleconference on Refugee/Asylee Issues | CLINIC

Minutes of February 12, 2015 NSC Teleconference on Refugee/Asylee Issues

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Q.  Can you please clarify whether refugees, because they are statutorily exempt from having to pay the I-485 filing fees, are eligible to file an I-131 and/or I-765 at no additional charge when filed concurrently with an I-485 application to adjust status? Please also clarify whether a refugee may file an I-131 or I-765 at no additional charge after the I-485 initial filing, but while the I-485 remains pending.

The fee rule notice published in the Federal Register on May 30, 2007 indicates that the higher fee ($1,070) for an I-485 Adjustment of Status Application includes as many EADs or Advance Parole documents as necessary while the I-485 application is pending.  The applications need not be filed concurrently, but they do need to be filed while the I-485 application is pending. 

Refugees need not pay the fee for the I-485 application, but are required to pay for the EAD and Advance Parole applications.

 

I-730

Q. If an I-730 application has been approved by Nebraska Service Center and then routed to the National Visa Center to continue its processing, what would normally happen when the petitioner takes no action in the Pre-Processing upon request for original documents?  Will the follow-to-join process continue and the case be sent to the designated U.S. Embassy or will it be returned to the Nebraska Service Center (NSC)? If returned to NSC, what will the Service do?

For these follow-to-join cases, when do you anticipate this Pre-Processing by the National Visa Center become a standard in all U.S. Embassies (at this time it still excludes Nairobi, Kenya)?

This question is best answered by the National Visa Center.

 

Q. If the petitioner of an I-730 Asylee/Refugee Relative Petition dies during the process of the case, can an attorney representing the surviving widow replace him on communications with USCIS by entering appearance through a new G-28 under her name, even when she was not the petitioner?

No, the petitioner cannot be replaced by the beneficiary.  An attorney can only represent the petitioner of the I-730.

 

Q. When calling the National Customer Service Center or National Visa Center, the operators only want to talk to the petitioner or attorney of record.  Would we still submit the G-28 without cover letter to NSC?
Q. For an I-730, only the petitioner is recognized as being represented with a valid G-28.  The G-28 does not apply to the beneficiary.  Information from INA § 204(l) on relief for surviving relatives can be found on the USCIS website.  There is no relief for beneficiaries outside of the United States. What would be the best way to channel communications to avoid the beneficiaries’ cases being abandoned?

Beneficiaries in the U.S. with a pending I-730 can see basic eligibility for benefits under INA § 204(l) at USCIS’s website.  USCIS may continue processing the petition if the beneficiary makes a written request.  There is no relief for beneficiaries outside of the U.S.

 

Q. Also, in situations like these, would it be possible to request expediting the process?

Beneficiaries in the U.S. with a pending I-730 can see basic eligibility for benefits under INA 204(l) at USCIS’s website.  There is no relief for beneficiaries outside of the U.S.

 

Q.  In order to request this relief on an Asylee Relative petition, the petitioner must have died while Form I-730 was pending and we should ask the USCIS office that has the petition to approve the petition despite the petitioner’s death.  If the petitioner died after the approval by Nebraska Service Center and the case been sent to NVC, but before the beneficiaries were interviewed at the US Embassy abroad, would USCIS consider this as “pending”?

 Benefits under INA § 204(l) apply only to beneficiaries that are in the U.S.  If the petitioner dies while the beneficiary is outside the U.S. the petition will be denied. 

 

Asylum Applications

Q.  Stakeholders report difficulties “fee-ing in” defensive asylum applications with the Nebraska Service Center. Individuals are following the pre-order instructions listed on the USCIS website at http://www.uscis.gov/sites/default/files/files/article/PreOrderInstr.pdf (including providing a valid Form G-28 where applicable), but have reported not receiving receipt notices and/or biometrics appointment notices.  Stakeholders also report that the applications have been erroneously forwarded to a USCIS asylum office.

Please confirm that the pre-order instructions on the USCIS website are accurate. Has NSC identified the source of these problems? What can individuals do to ensure that they receive a receipt notice and biometrics notice in cases they have already filed?

The USCIS website is accurate. However, the NSC’s Records Division did recently discover that some attorneys were filing Form EOIR-28 along with the I-589.  Therefore, those attorneys were not receiving the notices.  As a courtesy, the NSC will key in the EOIR-27 or EOIR-28 and send the attorneys a letter indicating that they should file Form G-28.  Duplicate receipt notices cannot be generated at this time.  Contact the NSC regarding missing ACS or biometrics appointment notices.

 

Q.  When the spouse of an asylee is included in his I-589 application and afterwards both of them are granted asylum in front of an Immigration Judge and receive separate approval letters.   Will she be considered a principal asylee on her own?  Or is she considered a derivative / beneficiary?  If considered a principal, would this allow her to file Asylee Relative Petitions (Form I-730) on her own?

Ordinarily, the person who filed Form I-589 is considered the principal asylee, and those family members listed on the form are derivatives.  If more than one family member files Form I-589, and each receives an approval letter from immigration judge, then each would be considered a principal asylee and can file their own asylee relative petitions. 

 

Q. How can we determine if a derivative asylee still holds that status if it appears that the principal has abandoned it through reavailment?  In some scenarios, we have seen principal asylee parents not adjusting status to LPR and traveling out of the U.S. without refugee travel documents.  If after such travel, the derivative returns to the United States, can they apply for Adjustment of Status based on their original derivative asylum status? Or would he be considered in a different status at the time of admission?

Reavailament is a possible ground of termination of asylum status, but asylum status continues until formally terminated.  Asylees described above would have issues attempting to return to US after such travel.  Derivative asylees could still apply for Adjustment of Status, assuming that they still qualify as derivatives.

 

Q.  We have recently seen a couple of adjustment of status cases for derivative asylees in which USCIS has issued Requests for Evidence requesting to submit a Form I-693, Report of Medical Examination and Vaccination Record. This is happening even when we’ve enclosed copies of the medical exam conducted overseas. According to the Adjudicators Field Manual (Chapter 23.6):

“(…) 2) Asylees . With limited exceptions, all asylee adjustment applicants must obtain full medical examinations and vaccination certificates as part of the adjustment process (see 8 CFR 209.2(d) and Chapter 23.3 of this field manual). Subject to your verification that a full report, with vaccination requirements, is contained in the alien’s file, the exceptions which are not required to submit medical examination reports are: … Persons who received derivative asylum status through the I-730 process and received a medical examination before being issued travel authorization by a consular officer. (Note: this does not apply to persons whose status was changed to derivative asylee based on an I-730 petition approved while the beneficiary was in the U.S.; such persons must submit medical examination reports as part of the adjustment process.).”  Please clarify.

Derivative asylees who completed a medical exam overseas do not have to repeat the whole exam if the overseas exam was completed within two years.  They may be required to submit the relevant parts of Form I-693 (parts 1 and 5).  Note that Form I-693 is only valid for one year.  If Form I-693 has expired at the time of adjudication, the applicant must resubmit parts 1 and 5.