How Do I Apply for Derivative Refugee
Status for My Spouse or Children?
Background
If you have not yet registered for refugee status, you may include your spouse
or any unmarried child under the age of 21 on the form entitled,
"Registration for Classification of a Refugee." For more information,
please see, How Do I Apply for Resettlement in the United States as a Refugee?.
If you have already been admitted to the United States with refugee status,
you may apply for derivative refugee benefits for your spouse or child. Please
also see Application Procedures: Settling a Child as a Derivative Refugee in
the U.S., and Application
Procedures: Settling a Spouse as a Derivative Refugee in the U.S.. This
means that your spouse or child may be granted refugee status based on your own
refugee status. An "accompanying derivative" is a child or spouse who
is with you when you are admitted into the United
States as a refugee, or a child or spouse who joins you
within four months after you are admitted into the United States as a refugee. A
"following-to-join derivative" is a child or spouse that joins you
more than four months after you are admitted into the United States
as a refugee. For an excellent overview of the U.S. refugee program, please see
the chapter on refugees in the Immigration Statistical Yearbook.
Where Can I Find the Law?
The Immigration and Nationality Act (INA) is the law that governs the U.S. refugee
program. For the part of the law concerning refugees, please see INA § 207 and
the definition of a refugee as it appears in the INA at 101(a)(42). The
specific eligibility requirements and procedures for applying to bring your
child or spouse to the United States as refugee are included in the Code of
Federal Regulations [CFR] at 8 CFR § 207.
Who is Eligible?
You may apply for derivative refugee benefits for your spouse or unmarried
child under the age of 21 within two years of your admission to the United States
as a principal refugee or by February 28, 2000, whichever is later. If your
child or spouse is already in the United States, they may be eligible
for settlement as a refugee, regardless of whether they are in the country
legally or illegally. The relationship between you and your spouse and your
child must have existed when you were admitted as a refugee and must continue
to exist when you file Form I-730 (Refugee/Asylee Relative Petition) and when
your spouse or child is admitted to the United States.
If your child is outside the United States and has been approved for derivative
refugee status, your child will be able to come to the United States as a
refugee at any time as long as they are under 21, unmarried, and maintain their
relationship with you. If your spouse is outside the United
States and has been approved for derivative refugee
status, your spouse will be able to come to the United States as a refugee at any
time as long as your spouse remains married to you.
·
You
may apply for derivative refugee status for a child who was already conceived,
but not yet born, on the day you were admitted as a refugee.
·
You
may apply for derivative refugee status for a step-child if the marriage
between you and the child's parent took place before the child's 18th birthday.
·
You
may apply for derivative refugee status for an adopted child if the adoption
took place before the child's 16th birthday and the child has been in your
legal custody for at least two years.
·
You
may not apply for derivative refugee status for your child's mother unless she
is married to you on the date of your admission to the United States.
Parentage testing, also
referred to as blood testing or DNA testing, may be requested only after
initial and secondary forms of evidence have proven inconclusive. Tests will be
conducted at the expense of the petitioner. Parentage testing must be conducted
by an American Association of Blood Banks ("AABB") accredited
laboratory. A current list of the AABB accredited parentage testing
laboratories can be viewed on the American Association of Blood Banks website.
You may also wish to read the Fact Sheet about Parentage Testing.
After your spouse or child is admitted to the United States as a derivative
refugee, they must be granted special permission to travel abroad until they
adjust to lawful permanent resident status. For more information, please see, How Do I Get a Travel Document? For other specific eligibility information,
please see Form I-730 Refugee/Asylee Relative Petition and 8 CFR § 207. Please
also see Application Procedures: Settling a Child as a Derivative Refugee in
the U.S., and Application Procedures: Settling a Spouse as a Derivative Refugee
in the U.S..
Will I Get a Work Permit?
Your spouse or any child over the age of 14 will be eligible to work after
their application for derivative refugee status has been approved and they have
been admitted to the United States. Upon their admission to the United States,
the U.S. Citizenship and Immigration Services will issue your spouse or child
an I-94 Arrival - Departure record that will prove that your spouse or child is
a refugee and is allowed to work in the United States. Your spouse or child
also has the option to file Form I-765, Application for Employment
Authorization. This form may be filed at the same time that you file for
derivative refugee status for your spouse or child. However, a work permit will
not be granted until after the application for derivative refugee status has
been approved and your spouse or child is admitted to the United States. For
more information, please see How Do I Get a Work Permit?
How Can I Check the Status of My
Application?
If you have filed Form I-730 (Refugee/Asylee Relative Petition)
on behalf of your spouse or child, please contact the Nebraska Service Center,
which is where you should have sent your application. You should be prepared to
provide the staff with specific information about your application. Please see
Finding the status of your case for complete instructions on checking the
status of your application.
How Can I Appeal?
If your application for derivative refugee benefits for your spouse or child is
denied, you will receive a letter that will tell you why the application was
denied. You will not be allowed to appeal a negative decision to a higher
authority. However, you may submit a motion to reopen or a motion to reconsider
with the Director of the Nebraska Service Center. By filing these motions, you
may ask the office to re-examine or reconsider the decision. A motion to reopen
must state the new facts
that are to be provided in the reopened proceeding and must be accompanied by
affidavits or other documentary evidence. A motion to reconsider must establish
that the decision was based on an incorrect
application of law or USCIS policy, and further establish that
the decision was incorrect based on the evidence in the file at the time the
decision was made. For more information, please see How Do I Appeal the Denial
of Petition or Application?