I-730 Asylee Relative Petition During Removal Proceedings

What Form I-730 does for a relative in removal proceedings

Form I-730, Refugee/Asylee Relative Petition, lets a person who has been granted asylum (the principal asylee) petition for a spouse or an unmarried child under 21 to receive the same status as a derivative. The principal files the petition with USCIS. The relative does not file it.

Under 8 CFR 208.21(c), the principal may file for a relative who is in the U.S. regardless of the status of that spouse or child in the U.S. That includes a relative who is in removal proceedings.

The relationship must exist when the principal is granted asylum and must continue when the petition is filed.

Deadline, fee and processing

The USCIS Form I-730 page and the regulations set these rules:

• Deadline: a separate petition for each relative within two years of the grant of asylum. USCIS can allow a later filing for humanitarian reasons (8 CFR 208.21(c)).
• Fee: none. 8 CFR 106.2(a)(42) lists Form I-730 without a fee.
• Who can be included: a spouse and an unmarried child under 21. The USCIS page notes that some children over 21 can qualify under the Child Status Protection Act.
• Processing: USCIS processes petitions in the order received.
• Validity: the approval lasts while the relationship continues, the child is under 21 and unmarried, and the principal's asylum has not been revoked.

After approval: status and work authorization

On approval the relative has derivative asylee status. Under 8 CFR 208.21, employment is authorized incident to status. USCIS issues a document showing the status, and the relative may also apply for an employment authorization document (EAD) under 8 CFR 274a.12(a). The category for a person granted asylum is 8 CFR 274a.12(a)(5).

Ending the removal case after approval

Approval of the petition does not by itself end the removal case. An immigration judge ends it by an order of termination.

Under 8 CFR 1003.18(d)(1)(i), an immigration judge shall terminate the case when at least one listed requirement is met. Two apply to this situation. The first is that the person has obtained asylee status since proceedings began, the status has not been revoked or terminated, and the person would not have been deportable or inadmissible as charged had they held that status before proceedings began. The second is that both parties ask for termination, or one asks and the other affirmatively does not oppose, unless the judge gives unusual, clearly identified and supported reasons for denying the motion.

Section 1003.18(d)(1)(ii) also lets a judge terminate a case in the exercise of discretion on a party's motion when a listed requirement is met. A motion to terminate can attach:

• the I-730 approval notice and any document showing derivative asylee status;
• proof of the relationship, such as a marriage or birth certificate; and
• any other evidence that bears on the requirements in 8 CFR 1003.18(d)(1).

If the hearing comes before USCIS decides the petition

A motion to continue asks the judge to reset a hearing. A motion for administrative closure asks the judge to take the case off the active calendar temporarily.

Under 8 CFR 1003.18(c)(3), the judge shall grant a motion to administratively close that both parties file jointly, or that one party files with the other party's affirmative non-opposition, unless the judge gives unusual, clearly identified and supported reasons for denying it. In other cases the judge weighs the totality of the circumstances.

After termination: a green card and later steps

A person granted asylum can apply to adjust status to permanent resident after one year of physical presence in the U.S. following the grant (8 CFR 209.2(a)(1)(ii); INA 209(b)). While a person is in removal proceedings, that application can be filed and considered only in those proceedings (8 CFR 209.2(c)). The status of the removal case therefore matters before a green card application.

Permanent residence is also a step toward naturalization, which follows separate rules. See citizenship and asylum.