Can my Immediate Family Derive Asylum from Me (the Main Applicant)?

If a person gets granted asylum, their spouse and unmarried children may be granted the same status without having to file additional applications if they were included on the asylum application and are in the United States.

If the family members were not included on the asylum application or are not in the United States, the principal asylee must file an additional petition by filing out form I-730, Refugee/Asylee Relative Petition, to have them classified as derivative asylees.

In order to be eligible for the I-730 petition, the following requisites must be met:

  • The relationship between the principal asylee and the relatives must have existed on the date the principal asylee was granted asylum in the United States and must continue to exist;
  • Additionally, for unmarried children, the relationship also must have existed on the date the principal was granted asylum. If the child was conceived but not yet born on that date, the relationship will be considered to exist as of the date of the asylum grant. If the child is adopted, the adoption must have taken place before the child turned 16 and the child must have been in the legal custody of and living with the adoptive parent(s) for two years.
  • There are additional technicalities for stepchildren, essentially the parental relationship of the stepchild must have occurred before the child turned 16.
  • The derivative status ends if the child marries prior to arrival in the United States as an asylee.

Included and Living in The United States

If the spouse and unmarried children were named on the asylum application and are in the United States, the procedure is relatively simple because they derived asylum on the date the principal applicant was granted, provided the above relationships are established.

If the principal was granted asylum by the asylum office, the spouse and children will be issued separate I-94s indicating their asylee status, which allows them to work. They may also apply for an employment authorization document and an unrestricted social security card.

If the principal was granted asylum by an Immigration Judge, the Department of Homeland Security (DHS) should schedule a time when the family can appear for processing of the I-94s., however, not all local offices practice this.

In a unique setting where a family gets separated and the main applicant is detained and wins asylum in a detained court, while the family’s case goes forward in a non-detained court, the derivatives may file I-730’s with USCIS. The family may request extensions before an Immigration Judge to await adjudication of the I-730’s.

 Living Abroad

If the spouse and unmarried children were not named on the I-589 application or are outside the United States, the process is different. Here, the principal must file a Form I-730, Refugee/Asylee Relative Petition, within two years of obtaining asylum. The petitions can be filed after two years, but only for extreme humanitarian reasons, such as serious health factors, along with a thorough explanation. The derivative child or spouse does not need to put forth an independent claim that rises to asylum protection.

The asylee must file a separate I-730 for each family member seeking benefits. The asylee may need to why the child or spouse was not included in the original I-589 application. The spousal relationship must have existed at the time the principal was granted asylum and must continue to exist until the I-730 is approved.

Who may not get an I-730 approved

  1. A spouse or child who has previously been granted refugee or asylee status;
  2. An adopted child, if the adoption took place after the child turned 16, or if the child has not been in the legal custody and living with adoptive parents for at least two years;
  3. A stepchild, if the parents married after the child turned 18;
  4. A husband or wife who was not properly married;
  5. A husband or wife if either has attempted or conspired to enter into marriage for evading immigration laws;
  6. A parent, sister, brother, grandparent, grandchild, nephew, niece, uncle, cousin, or in-law.

At the Powers Law Group, we have recently gotten I-730’s approved both stateside and abroad. Stay tuned to hear about those success stories. As always, contact us to schedule a consult if you have any questions regarding derivative asylum or asylum in general.

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