9 FAM 203.5
(U) Casework for Follow-to-Join Asylees and Refugees
(CT:VISA-879; 06-27-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 203.5-1 (U) Introduction
(CT:VISA-763; 04-16-2019)
a. (U) V92 and
V93 Introduction:
(1) (U) V92/93 beneficiaries
are eligible for derivative status on the basis of their relationship to a
principal asylee or principal refugee (see 9 FAM
203.5-4(A)). They are not required to establish that they have been
persecuted, or have a well-founded fear of persecution (see 9 FAM
203.5-4(A) paragraph c(2)). However, you must determine whether the
beneficiary is barred, inadmissible, or subject to denial (see 9 FAM
203.5-4(B)).
(2) (U) Your role in
processing V92 and V93 cases is discussed in 9 FAM 203.5-2
below, and the need for confidentiality in handling such cases is covered in 9 FAM 203.5-3.
Eligibility for V92 and V93 status is covered in 9 FAM 203.5-4,
and detailed instructions on processing procedures for V92/V93 cases are
provided in 9
FAM 203.6.
(3) (U) Use care when
processing cases to be sure that you are using instructions appropriate for the
type of automated system youre using, for the appropriate consular section
roles (see 9
FAM 203.5-2), and for V92 vs. V93 benefits. V93 beneficiaries, like all
refugees, have very specific processing and eligibility requirements, and are
entitled to certain benefits that V92 beneficiaries do not receive. These
include U.S. Government-funded medical exams, resettlement agency sponsorship,
travel loans, and reception and placement benefits upon arrival to the United
States.
b. (U) Lifecycle
of V92/V93 Case: See 9 FAM 203.6
for detailed instructions on processing steps for V92/V93 cases. In overview,
the lifecycle of a Form I-730, Refugee/Asylee Relative Petition, filed on
behalf of a beneficiary overseas is as follows:
(1) (U) V92 petitions are filed
with and adjudicated at either the U.S. Citizenship and Immigration Services
(USCIS) Nebraska or Texas Service Center. V93 petitions are filed with
the USCIS Nebraska or Texas Service Center
and are adjudicated by the USCIS International
Adjudications Support Branch (IASB). If the petition is approved, it is
forwarded overseas via the National Visa Center (NVC) to the post having
jurisdiction over the beneficiarys place of residence;
(2) (U) A USCIS officer or
consular officer (where USCIS is not present) interviews the beneficiary to
determine eligibility to travel to the United States;
(3) (U) If the beneficiary is
approved to travel, the officer issues travel documentation to enable the
beneficiary to travel to the U.S. and request admission at a U.S. port of entry
(POE). For V93 cases, the officer also helps make travel arrangements. A U.S.
Customs and Border Protection (CBP) officer makes the final decision whether to
admit the beneficiary to the United States;
(4) (U) If the beneficiary is
found ineligible to travel, you must inform the beneficiary and return the case
as a Consular Return via the NVC to the appropriate USCIS Service Center for
possible denial. If the evidence provided by the overseas office is
insufficient to support a denial or is overcome by additional evidence provided
by the petitioner, the USCIS Service Center reaffirms the case and sends it
back to post for continued processing.
9 FAM 203.5-2 (U) Roles in v92
and v93 cases
(CT:VISA-763; 04-16-2019)
a. (U) USCIS
and Consular Authorities:
(1) (U) As a matter of law,
authority to adjudicate and process refugee and affirmative asylum claims,
including Form I-730 follow-to-join derivatives of asylees and refugees, rests
exclusively with the Department of Homeland Security (DHS). (See INA 207, INA 208 and 6 U.S.C. 271)
(2) (U) USCIS is the DHS
administering agency, and the USCIS Nebraska and Texas Service Centers have
primary responsibility for I-730 petition adjudications of asylees interviewed
by consular officers. (Note: The Executive Office for Immigration Review of
the Department of Justice also adjudicates asylum claims filed defensively or
referred by USCIS, but does not adjudicate Form I-730 petitions for derivative
refugee or asylee status.) USCIS International
Adjudications Support Branch has primary responsibility for I-730 petition
adjudications of refugees interviewed by consular officers.
(3) (U) Consular officers act
as agents of the USCIS Service Centers for the purpose of facilitating overseas
V92/V93 case processing and verifying the eligibility of the approved
beneficiaries, but not for final adjudication of the I-730 petition. If you
uncover information during case processing that suggests USCIS should not have
approved an I-730 petition, you should return the case via the NVC to the
adjudicating USCIS Service Center or International Adjudications Support Branch
for further action, following the guidance in 9 FAM 203.6-9 and 9 FAM
203.6-11 for reporting information that calls into question whether the
beneficiary is eligible for derivative refugee or asylum status.
b. (U) Consular
Role in Case Processing:
(1) (U) Your role in case
processing differs depending on whether USCIS is present at post, whether the
case is an asylee follow-to-join (Visas 92 - V92) or a refugee follow-to-join
(Visas 93 - V93), and whether post has immigrant visa processing software
(IVO) or is a non-IVO post. V93 cases will only be processed in IVO at
immigrant visa-processing posts. V92 can be processed in either NIV or IVO and
at any location.
(2) Unavailable
(3) (U) With regard to USCIS
and non-USCIS presence posts and the consular role in V92/V93 processing, posts
should follow the guidelines below. Note that a USCIS-presence post is one
where USCIS is co-located, has a permanent office and a counter-presence that
regularly sees the public.
(a) (U) USCIS
Presence Posts:
(i) Unavailable
(ii) Unavailable
(b) Unavailable
c. (U) Workflow
Description for V92/V93 Cases Handled by Both USCIS and Visa Units with IVO
Systems (At Locations Where Foils Are Issued):
(1) (U) How
to Use This Section:
(a) Unavailable
(b) (U) In addition, per
paragraph b above, V93 eligibility standards and processing are different from
those used in V92 cases the example shown below notes steps which apply only
to V93 or only to V92 case processing; if neither is specified, the instruction
applies to both V92 and V93 cases.
(c) (U) Note that the following
workflow descriptions are intended to show how USCIS and consular sections
interact in V92/V93 cases, and to give consular sections information about
USCIS instructions to its officers. However, IVO posts (with a USCIS presence)
must follow applicable processing guidelines in 9 FAM 203.6
related to the processing steps for which they are responsible; such posts must
not rely solely on the following workflow charts for processing instructions.
(2) Unavailable
(a) Unavailable
(b) Unavailable
(i) Unavailable
Unavailable
Unavailable
(ii) Unavailable
(iii) Unavailable
(c) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(v) Unavailable
(vi) Unavailable
(d) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(v) Unavailable
(e) Unavailable
(f) Unavailable
(g) Unavailable
(i) Unavailable
(ii) Unavailable
(h) Unavailable
(i) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
9 FAM 203.5-3 (U) Confidentiality
in Refugee, Asylee, V92 and V93 Casework
(CT:VISA-763; 04-16-2019)
a. (U) Overview:
Department of State records related to visa and refugee processing are
considered confidential under INA 222(f) and use of these records is
restricted to "the formulation, amendment, administration, or enforcement
of immigration, nationality and other laws of the United States." With
limited exceptions further described below, information regarding specific
refugee cases may not be released to anyone other than the applicant himself or
herself and authorized third parties, except as needed by organizations
directly involved in the refugee processing system or for use by Members of
Congress who have need of the information for "the formulation, amendment,
administration, or enforcement of immigration, nationality, or other laws of
the United States." See 9 FAM 603.1
for additional information on protecting visa information.
(1) (U) Confidentiality in
this context refers to its disclosure and releasability, not its security
classification. (See also 9 FAM 603.1-3.)
(2) (U) United Nations High
Commissioner for Refugees (UNHCR) policy requires strict confidentiality
regarding refugees and asylum seekers. Refugees referred to the U.S. refugee
program by UNHCR have signed a confidentiality release to permit UNHCR to
release personal information to resettlement governments and processing
agencies.
b. (U) Guidance on Release of
Information:
(1) (U) Applicant
Inquiries: A refugee applicant (beneficiary) may make a direct inquiry
to the Resettlement Support Center (RSC) or consulate responsible for the
processing of his/her V92/93 case orally or in writing concerning the
status of his or her case. If an applicant has a serious impediment such as
age, illness, or physical disability that prevents him or her from asking on
his or her own behalf, minimal case status information may be provided to a
third party if the inquirer satisfactorily establishes his or her bona fides.
Consular officers should exercise common sense and caution in responding to
such inquiries and should provide only the minimum information necessary to
respond to the inquiry. Case status information may also be provided to
certain authorized third parties as described below.
(2) (U) PRM, UNHCR, IOM, DHS and Other Official Entity Inquiries: Consular
officers may respond directly to oral or written inquiries about the status of
cases made by the Bureau of Population, Refugees, and Migration (PRM), UNHCR,
and IOM, the sponsoring resettlement agency in the United States, or any other
official entity such as a U.S. Embassy or DHS office that requires case
information to facilitate processing of the case.
(3) (U) Congressional Inquiries:
(a) (U) Written (including
emails) inquiries from Members of Congress or their staffs that do not
specifically relate to adjudication decisions by DHS should be answered with
only the information necessary to answer the inquiry. Case-specific
information in response to telephonic inquiries from Members or their staffs
may not be provided. No copies of documents or other items from a case file
may be provided. Responses to case status inquiries should include a reminder
that, pursuant to INA Section 222(f), the information:
(i) (U) is to be treated as
confidential;
(ii) (U) is being provided to
them solely for the purposes related to "the formulation, amendment,
administration, or enforcement of the immigration, nationality, and other laws
of the United States;"
(iii) (U) should not be shared
with other Members of Congress or their staffs except as specifically needed
for the aforementioned purposes; and
(iv) (U) should not be released
to the public.
(b) (U) If the incoming
Congressional letter requests that the Embassy respond directly to a
constituent or other third party, the consular officer should provide the
requested case summary information to the Member of Congress unless it relates
to adjudication decisions made by DHS. Include the following statement: Pursuant
to Section 222(f) of the Immigration and Nationality Act, "The records of
the Department of State and of diplomatic and consular offices of the United
States pertaining to the issuance or refusal of visas or permits to enter the
United States shall be considered confidential and shall be used only for the
formulation, amendment, administration, or enforcement of immigration,
nationality, and other laws of the United States. In accordance with law and
policies governing the confidentiality of Department of State refugee
processing records, we are unable to provide information on specific refugee
cases directly to your constituent. The refugee applicant or a third party
authorized by the applicant to receive information may obtain information about
the case by inquiring directly to the Resettlement Support Center handling the
case. We appreciate your understanding of the Department's concern to ensure
confidentiality in the U.S. Refugee Admissions Program (USRAP).
(4) (U) Third
Party Inquiries:
(a) (U) Written (including
emails) inquiries from U.S. Government law enforcement entities that do not
specifically relate to adjudication decisions by DHS, but are made for official
purposes, will generally be answered with the requested information. Information
in response to telephonic inquiries may not be provided. Responses must
be coordinated with and sent from PRM/Refugee Admissions, with involvement of
the Legal Advisers Office, where needed.
(b) (U) Written (including
email) inquiries for case status information from third parties such as
attorneys or accredited representatives may be answered with the requested
information if the request is accompanied by or preceded by a completed and
signed Form G-28 or Form G-28I, which is
issued by DHS.
(i) (U) The Form G-28 or Form G-28I must include complete and
verified information, including signature, from the refugee applicant, as well
as complete information, including signature, from the relevant third party.
RSCs or consular officers should ensure that the applicants signature on the
form is verified against his/her signature on file, if available. Responses to
case status inquiries may only be sent to the physical address or email address
provided in the original Form G-28 or
G-28I. Case status information in response to telephonic requests from third
parties may not be provided.
(ii) (U) There is not a
defined validity period for the G-28 or G-28I. However, it may be appropriate
to check whether the G-28 or G-28I remains valid - whether the authorized third
party remains the representative of the individual.
(c) (U) Written inquiries
(including email) for case status information from other third parties, such as
family members, may be answered with the requested information if the request
is accompanied by or preceded by a letter from the applicant providing
authorization that the information be shared with the third party. There is no
specific format for this letter, but it must contain at a minimum the
applicants full name and USRAP case number, along with the full name of the
third party to whom the information may be released, and it must be signed by
the applicant. RSCs or consular officers should ensure that the applicants
signature on the letter is verified against his/her signature on file, if available.
The letter must also contain a physical address and/or email address for the
authorized third party. Case status information in response to telephonic
requests from third parties may not be provided.
(d) (U) The information that can
be provided to an authorized third party is limited to case status
information. Inquiries for other information regarding specific refugee cases
may not be provided to third parties, even if authorization has been provided.
For example, an authorized third party may not inquire as to the reason a
refugee applicant has been deemed ineligible for P-2 access. Further, an
authorized third party is not permitted to accompany a refugee applicant to RSC
intake and prescreening or engage in other forms of involvement in refugee
processing.
(e) (U) If information
disclosure to third parties has not be authorized, responses to inquiries must
be limited to general descriptive material about the USRAP or a description of
program procedures that might be of assistance to the inquirer.
(5) (U) Contact the Office of
Admissions in the Bureau of Population, Refugees and Migration (PRM/A) for
further information on refugee records or templates for response to inquiries.
c. Unavailable
(1) Unavailable
(a)
(b) Unavailable
(c) Unavailable
(d) Unavailable
(2) Unavailable
(a) Unavailable
(b) Unavailable
(3) Unavailable
(a) Unavailable
(b) Unavailable
9 FAM 203.5-4 (U) Eligibility for
Following-to-Join Refugee or Asylee (V92/V93) Status
(CT:VISA-763; 04-16-2019)
a. (U) Eligibility
Guidelines: To be eligible to travel to the U.S. as a family member of
an individual granted refugee or asylee status:
(1) (U) The beneficiary must
establish their identity and a qualifying relationship with the refugee or
asylee (see 9 FAM
203.5-4(A) and 9 FAM 203.5-4);
and
(2) (U) The beneficiary must
be determined to not be subject to any bars, , or reasons for denial of their
case, unless such issues have been satisfactorily resolved (see 9 FAM
203.5-4(B)).
b. (U) No
Adjudication of Refugee or Asylum Claim: V92/93 beneficiaries are
eligible for derivative status on the basis of their relationship to a
principal asylee or principal refugee. They are not required to establish that
they have been persecuted, or have a well-founded fear of persecution (see 9 FAM 203.5-4 paragraph b). Similarly, the credibility of
the petitioners original asylum or refugee claim is not within your jurisdiction
to revisit (see 9 FAM
203.6-11 for guidance on cases in which information presented by the
beneficiary indicates significant issues with the petitioners refugee or
aslyee claim.)
c. (U) Case
Processing: This section deals only with eligibility for V92 and V93
status. See general V92 and V93 case processing guidelines in 9 FAM 203.6.
9 FAM 203.5-4(A) (U) V92/V93
Qualifying Relationship with Refugee or Asylee
(CT:VISA-879; 06-27-2019)
a. (U) Introduction:
There are two factors in demonstrating a qualifying relationship with a
refugee or asylee:
(1) (U) An eligible petitioner
see paragraph b; and
(2) (U) A spouse or child
relationship with the petitioner see paragraph c for an overview of these
qualifying relationships, paragraph d for information on the spouse
relationship, and paragraph e for information on the child relationship.
Other familial relationships (which cannot be the basis for V92/V93 status) are
addressed in paragraph f.
b. (U) Eligible
Petitioner:
(1) (U) Refugee or Asylee Status:
The Form I-730 Refugee/Asylee Relative Petition for V92/V93 beneficiaries may
be filed by a refugee who was admitted to the United States as a principal
refugee, or by an asylee who was granted asylum as a principal asylee either by
USCIS or by the Department of Justices Executive Office for Immigration Review.
See also 9
FAM 203.6-2 paragraph a(1)(b) for information on petitions filed by LPRs
and naturalized citizens who were refugees or asylees. For more general
information on filing, adjudication and processing of I-730 petitions, see 9 FAM 203.6-2.
(2) (U) Effect
of Death of Petitioner:
(a) (U) A beneficiary is
ineligible for Form I-730 benefits if the petitioner dies before the
beneficiarys arrival to the United States. In such circumstances, the
beneficiary should not be issued travel authorization. Instead, the officer
should obtain a death certificate or other evidence of the petitioners death
and return it along with the Form I-730 via the NVC to USCIS for the case to be
reopened and denied (see 9 FAM 203.6-9
on consular returns).
(b) (U) In some circumstances,
the beneficiary may apply for humanitarian parole with USCIS in order to travel
to the United States. (See 9 FAM
202.3-3(B)(1) for more information on
humanitarian parole.)
c. (U) Beneficiary
Eligibility:
(1) (U) Spouse
or Child: A Form I-730 may be filed on behalf of either a spouse or a
child as defined, respectively, in INA 101(a)(35) and INA 101(b)(1)(A-E) (see
definitions in 9 FAM 102.8-1 and 102.8-2). A separate Form I-730 must be
filed for each qualifying family member. Paragraphs d and e below provide
additional information on spouse and child relationships; paragraph f addresses
other familial relationships.
(2) (U) Relationship
Key to Eligibility: V92/93 beneficiaries are eligible for derivative
status on the basis of their relationship to a principal asylee or principal
refugee. They are not required to establish that they have been persecuted, or
have a well-founded fear of persecution, on account of race, religion,
nationality, membership in a particular social group, or political opinion as
described in the first sentence of the refugee definition at INA 101(a)(42).
(a) (U) Unlike a principal
refugee or asylum applicant, V92/93 beneficiaries may be eligible for
derivative status even if they are firmly resettled in another country since
the firm resettlement bar does not apply to them.
(b) (U) These beneficiaries also
need not be the same nationality as the I-730 petitioner and may reside in
their country of nationality or any other country.
(3) (U) Nature
of V92/93 Qualifying Relationships:
(a) (U) In order to derive V92
or V93 status under 8 CFR 207.7(c) and 8 CFR 208.21(b), the qualifying
relationship between the petitioner and the beneficiary:
(i) (U) Must have existed at
the time that the petitioner was granted asylum (for V92 cases) or admitted to
the United States as a refugee (for V93 cases), and
(ii) (U) Must continue to
exist at the time of filing for Form I-730 following-to-join benefits, and at
the time of the spouse or childs subsequent admission to the United States.
(b) (U) The exception to this is
a child who had been conceived but was not born (was in utero) as of the date
on which the petitioner acquired status (see paragraph e (2) below).
(c) (U) Relationships created
after the date of the petitioners asylum grant or refugee admission do not
qualify for Form I-730 purposes, although the refugee or asylee may be eligible
to file a Form I-130 for the same individual once that refugee or asylee
adjusts to Lawful Permanent Resident (LPR) status.
(d) (U) A qualifying
relationship will cease to exist if, prior to the approval of the Form I-730 or
a beneficiarys admission into the United States, the petitioner and spouse
divorce, the petitioners child marries (see paragraph e(5) below), or the
petitioner dies (see paragraph b(2) above).
d. (U) Eligibility
of V92/V93 Spouse:
(1) (U) Qualifying
Marriage: To qualify as a V92/V93 beneficiary spouse, the individual
must meet the definition of spouse as defined in INA 101(a)(35). You should
follow the guidance at 9 FAM 102.8-1 for determining whether the marriage is valid
for immigration purposes, including the underlying principal that the law of
the place of marriage celebration controls. A child's parent only qualifies as
a beneficiary if married to the petitioner at the time the petitioner acquired
asylee or refugee status. See also 9 FAM 203.6-5 paragraph (a)(2).
(2) (U) Proxy
Marriage: The terms spouse, wife, and husband do not include a
spouse, wife, or husband by reason of any marriage ceremony where the
contracting parties thereto are not physically present in the presence of each
other (i.e., proxy marriages), unless the marriage has been consummated. (See 9 FAM
102.8-1(D).)
(3) (U) Marriage
Fraud: The beneficiary is not eligible to derive status if he/she is a
husband or wife determined by USCIS to have attempted or conspired to enter
into a marriage solely for the purpose of evading immigration laws.
e. (U) Eligibility
of V92/V93 Child: To qualify as a V92/V93 beneficiary as a child, the
individual must be unmarried and meet the definition of child in INA
101(b)(1)(A)-(E). (See also 9 FAM 102.8-2.)
(1) (U) Child
Status When I-730 Filed and Adjudicated, and at Admission:
(a) (U) The parent-child
relationship must exist at the time the I-730 was filed, at the time of its
adjudication, and at the time of the beneficiarys subsequent admission to the
United States (see 8 CFR 208.21(b) and 207.7(c)).
(b) (U) Subject to certain
situations governed by the Child Status Protection Acts (CSPA - Public Law
107-208) aging out provisions, a child includes only an unmarried person
under the age of 21. Accordingly, the child must be both unmarried and under
21 years of age at the time he or she is issued the appropriate documentation
for travel and at the time that he or she applies for admission to the United
States, unless the CSPA applies. See paragraph (4) below for more information
on CSPA provisions).
(2) (U) Child
in Utero: 8 CFR 207.7(c) and 8 CFR 208.21(b) allow a child to qualify for
V92 or V93 status even if the child was not born until after the petitioner was
granted asylum or admitted as a refugee, provided such child was in utero
(i.e., the child had been conceived but was not yet born) prior to the date on
which the petitioner acquired such status. As such, a Form I-730 may be
approved for a child who had been conceived but was not born as of the date on
which the petitioner acquired status, so long as the beneficiary falls within
one of the definitions of child set forth in INA 101(b)(1).
(3) (U) Bases
for Child Status:
(a) (U) Although a petitioner
will usually be the biological parent of the in utero child claimed as the
derivative, it is possible for such a beneficiary to qualify as a derivative
even if the petitioner is not the biological father. This results from the breadth
of the definition of child in INA 101(b). For example, such a child could be
considered a stepchild which requires that the child had not reached the age of
eighteen years at the time the marriage creating the status of stepchild
occurred whether or not born out of wedlock and therefore qualify as a child
under INA 101(b)(1)(C).
(b) (U) Other definitions of
child such as step-child or adopted child may also create a qualifying
relationship in cases where the petitioner is not a biological parent. Each
circumstance must be reviewed on a case-by-case basis that will often involve
not only U.S., but foreign laws and potentially international conventions,
particularly if there is a biological parent who objects to his or her child
going to the United States as the petitioners child. Post should seek an
advisory opinion from USCIS via CA/VO/F if there is any question as to whether
an I-730 beneficiary qualifies as the petitioners child or if there is an
objection by the biological parent to the childs immigration to the United
States.
(c) (U) The
beneficiary is not eligible to derive status if:
(i) (U) He/she is an adopted
child whose adoption took place after the age of 16, or who has not been in the
legal custody of and living with the adoptive parent(s) for at least two years
(there is an exception to the 2 year residence requirement for certain children
who have been battered or subjected to extreme cruelty). See INA 101(b)(1)(E);
or
(ii) (U) He/she is a stepchild
from a marriage that occurred after the child was 18 years old. See INA
101(b)(1)(B).
(4) (U) Effect
of Child Status Protection Act (CSPA) on I-730 Beneficiaries:
(a) (U) The Child Status
Protection Act (CSPA) (Public Law 107-208, 116 Statute 927, effective August 6,
2002) allows some children reaching the age of 21 to continue being classified
as a child in order to derive eligibility for asylum or refugee status from a
parent. This provision continues to protect the beneficiary through approval
of the Form I-730 until he or she enters the U.S. as a derivative asylee or
refugee. The CSPA applies if the child was under 21 when:
(i) (U) (For V92) The
principal applicant filed his/her I-589, Application for Asylum and Withholding
of Removal; or
(ii) (U) (For V93) The
principal applicant was first interviewed by USCIS (the USCIS interview date as
indicated in WRAPS is used to calculate CSPA eligibility for V93 beneficiaries,
as there is no formal I-590, Registration for Classification as Refugee, filing
date in refugee processing); and
(iii) (U) The child was listed
on the I-589 or I-590 (Registration for Classification as Refugee), as
appropriate, and the child is unmarried; or
(iv) (U) The child was not
included in his/her parents refugee or asylum application, but the child was
under 21 when his/her parent filed the I-730, and the child is unmarried.
(b) (U) Children who turned 21
years of age prior to August 6, 2002 are not covered by the CSPA, unless either
the Form I-730 or the petitioner's Form I-589 or I-590 was pending on that date.
If the Form I-730 was approved prior to August 6, 2002, but the beneficiaries
had not yet been issued documentation to travel to the United States, the form
is still considered to be pending.
(c) (U) If a child marries after
the I-730 was filed with USCIS, eligibility for CSPA protection ends, but a
subsequent divorce before the beneficiary travels to the United States can make
the individual eligible once again for V92 or V93 status. The intent of
Congress was for CSPA to be ameliorative and thus it is liberally construed.
For example:
(i) (U) If a beneficiary was
unmarried and under 21 at the time of the I-730 filing and adjudication, she or
he is eligible for CSPA protection.
(ii) (U) If he or she turns 21
and marries before the consular interview, she or he loses CSPA protection.
However, if he or she divorces before the interview, she or he is again
eligible for CSPA protection and I-730 benefits.
(d) (U) For complete guidance on
applying the CSPA to V92/93 processing, see the following USCIS memoranda, both
available at USCIS website:
(i) (U) U.S. Citizenship and
Immigration Service Memorandum, Processing Derivative Refugees and Asylees
under the Child Status Protection Act, HQIAO 120/5.2, dated July 23, 2003; and
(ii) (U) U.S. Citizenship and
Immigration Service Memorandum, The Child Status Protection Act -- Children of
Asylees and Refugees, HWOPRD 70/6.1, dated August 17, 2004.
(5) (U) Marriage
of Child Beneficiary Prior to Travel:
(a) (U) Consistent with
procedures for immigrant visa derivatives, unmarried children approved as
beneficiaries of Form I-730 petitions lose eligibility if they marry after
approval of their travel authorization but prior to arrival in the United
States. For this reason, I-730 child beneficiaries aged 14 and older are
required to sign a Notice on Pre-Departure Marriage & Declaration at
interview to affirm they are unmarried and understand they can no longer derive
status from their petitioning parent if they marry before arriving in the
United States (see 9 FAM 203.6-5 paragraph a(3)).
(b) (U) However, if the married
child subsequently divorces before traveling to the United States, he or she
should be considered eligible, including any applicability of the CSPA, as if
the marriage had not occurred. Per INA 101(a)(39), the term unmarried when
used in reference to any individual as of any time, means an individual who at
such time is not married, whether or not previously married. As such, a child
must be unmarried when he or she seeks (in present tense) to accompany or
follow to join. A new I-730 does not need to be filed; the previously approved
I-730 may still be used.
(c) (U) Examples:
(i) (U) If a beneficiary
child married after the I-730 was filed and divorced before final adjudication
of the I-730 or travel to the United States, that beneficiary is eligible for
I-730 benefits;
(ii) (U) If the beneficiary
child was married and divorced before the I-730 was even filed, that
beneficiary is eligible for I-730 benefits;
(iii) (U) If the beneficiary
child was married at the time the principal was granted asylum or admitted as a
refugee or at the time an I-730 was filed on that beneficiarys behalf, even if
the beneficiary subsequently divorced, that individual is not eligible for
I-730 benefits. See 8 CFR 208.21(b) and 8 CFR 208.7(c), showing that the
parent/child relationship must have existed at the time of the petitioners
asylum grant or refugee admission and at the time of filing the I-730).
f. (U) Other Familial Relationships: A
parent, sister, brother, grandparent, grandchild, uncle, aunt, nephew, niece,
cousin, or in-law does not have a qualifying relationship, and is not eligible
for V92/V93 status. In certain circumstances where an individual does not have
the requisite relationship to the petitioner in order to qualify for
follow-to-join benefits, humanitarian parole may be an option (see 9 FAM
202.3-3(B)(1) for more information on
humanitarian parole).
9 FAM 203.5-4(B) (U) Bars,
Inadmissibilities, and Bases for Denial Affecting V92/V93 Beneficiaries
(CT:VISA-879; 06-27-2019)
a. (U) V92/V93
Bars, Inadmissibilities, Denials - Introduction:
(1) (U) It is the
responsibility of the consular officer to elicit information pertaining to
derogatory information to determine if the beneficiary is barred or
inadmissible.
(2) Unavailable
(3) (U) Paragraph b below
addresses a reason to not approve travel that affects both V92 and V93 cases.
However, the bases for not approving cases for travel generally vary depending
on whether the case involves a V92 or V93 beneficiary paragraph c provides an
overview of the applicability of various bars and inadmissibilities. See more
detailed information in paragraph d, for issues involving V92 beneficiaries,
and paragraph e, for issues involving V93 beneficiaries.
b. (U) Previous
Grant of Asylum or Refugee Status for V92/V93 Beneficiary: Even if a
V92/V93 beneficiary is a spouse or unmarried child of the petitioner and meets
the criteria for relationship eligibility (see 9 FAM
203.5-4(A)), the beneficiary is not eligible to derive status if he/she was
previously granted asylum or refugee status (see INA 207(c)(2)(A) and INA
208(b)(3)(A)).
c. Unavailable
(1) Unavailable
(a) Unavailable
(b) Unavailable
(2) (U) See 9 FAM 203.6-7
for general information on processing V92/V93 cases which may involve bars or
inadmissibilities.
d. Unavailable
(1) Unavailable
(a) Unavailable
(b) Unavailable
(i) Unavailable
(ii) Unavailable
(c) Unavailable
(d) Unavailable
(e) Unavailable
(f) Unavailable
(g) Unavailable
(2) Unavailable
(3) Unavailable
(a) Unavailable
(b) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(v) Unavailable
(vi) Unavailable
(vii) Unavailable
(c) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(v) Unavailable
(vi) Unavailable
(vii) Unavailable
(viii) Unavailable
(ix) Unavailable
(x) Unavailable
(xi) Unavailable
(xii) Unavailable
(4) (U) V92
Relief Provisions: There are no waivers available for V92 applicants.
(5) (U) See 9 FAM 203.6-7
for instructions on processing cases which may involve V92 bars or
discretionary denials.
e. Unavailable
(1) Unavailable
(2) Unavailable
(a) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(b) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(v) Unavailable
(c) Unavailable
(d) Unavailable
(3) (U) See 9 FAM 203.6-7
for instructions on processing cases which may involve V93 bars or
inadmissibilities, and for information on waivers for INA 212(a)
ineligibilities.