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How Do I Get My Spouse or Children Derivative Asylum Status in the United States?

Background
Where Can I Find the Law?
Who is Eligible?
How Do I Apply?
Will I Get a Work Permit?
How Can I Check the Status of My Application?
How Can I Appeal?
Can Anyone Help Me?

 

Background
You may include your spouse or any unmarried children under the age of 21 in your own asylum application if your spouse or children are in the United States. For more information, please see, How Do I Apply for Asylum?.

If you have already been granted asylum, you may apply for derivative asylum benefits for your spouse or children. This means that your spouse or children may be granted asylum status based on your own asylum status. See Also, Application Procedures: Getting Derivative Asylum Status for Your Child, and Application Procedures; Getting Derivative Asylum Status for Your Spouse. If you have been a refugee or held asylum status for at least one year, you may be eligible to change your status to that of a permanent resident. For an excellent overview of the U.S. asylum program, please see the chapter on asylum in the Immigration Statistical Yearbook.


Where Can I Find the Law?
The Immigration and Nationality Act is the law that governs the U.S. asylum program. For the part of the law concerning asylum, please see INA § 208. The specific eligibility requirements and procedures for applying to bring your spouse or children to the U.S. as asylees are included in the Code of Federal Regulations [CFR] at 8 CFR § 208.


Who is Eligible?
You may apply for derivative asylum benefits for your spouse or unmarried children under the age of 21 within two years of your grant of asylum or by February 28, 2000, whichever is later. If your spouse or children are already in the United States, they may be eligible for derivative asylum benefits regardless of whether they are in the country legally or illegally. The relationship between you and your spouse and children must have existed when you were granted asylum and must continue to exist when you file Form I-730 (Refugee/Asylee Relative Petition) and when your spouse and children are admitted to the United States as derivative asylees. If your children are outside the United States and have been approved for derivative asylum benefits, your children will be able to come to the United States as an asylee 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 asylum benefits, your spouse will be able to come to the United States as an asylee at any time as long as your spouse remains married to you.

You may apply for derivative asylum status for a child who was already conceived, but not yet born, on the day you were granted asylum.

You may apply for derivative asylum 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 asylum 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 asylum status for your child's mother unless she was married to you on the date you were granted asylum.

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 children are admitted to the United States as derivative asylees, they must be granted special permission to travel abroad until they adjust to lawful permanent resident status. They cannot forfeit or give up their asylum status and later be re-admitted to the United States as asylees. For more information, please see, How Do I Get a Travel Document?. For other eligibility information, please see Form I-730 Refugee/Asylee Relative Petition or INA § 208.


How Do I Apply?
Please click here to see Application Procedures: Getting Derivative Asylum Status for Your Child, and Application Procedures: Getting Derivative Asylum Status for Your Spouse.


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 asylum has been approved and they have been admitted to the United States. Upon their admission, the U.S. Citizenship and Immigration Services will issue your spouse and children an I-94 Arrival and Departure record that will prove that your spouse and children are derivative asylees and are 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 can be filed at the same time that you file for derivative asylum status for your spouse and children. However, a work permit will not be granted until after the application for derivative asylum has been approved, and your spouse and children are admitted to the United States. For more information, see How Do I Get a Work Permit?.


How Can I Check the Status of My Application?
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 click here for complete instructions on checking the status of your application.


How Can I Appeal?
If your application for derivative asylum 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 office that made the unfavorable decision. By filing these motions, you may ask the office to reexamine or reconsider their 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?.


Can Anyone Help Me?
You may contact the USCIS District Office or Asylum Office near your home for a list of community-based, non-profit organizations and/or pro bono representatives that may be available to help applicants with advice and help. In addition, please see our free legal advice page.
 
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