The Asylumist

Winning asylum is becoming harder, but it still happens. One of the great benefits of receiving asylum in the United States is that you can file for certain family members to either come to the United States or–if they are already here but do not have status–obtain their lawful status in our country. The process of filing for a family member can be complicated, but a new resource can help: The I-730 Refugee/Asylee Family Reunification Practice Manual.

The first thing to know about this manual is that it is designed for attorneys and accredited representatives; it is not designed for lay people. In other words, it’s not really designed to assist asylees and refugees themselves. It’s important to understand this, as the manual does include some legal jargon and lots of legal references, which are more easily understood by people with legal training. However, overall, the manual is clear and well-written, and it might also be of use to people who are not represented by attorneys (I fear that the authors might cringe if they read this, but these days, low cost legal help is not easy to find, and for those who cannot secure assistance, the manual could be a real life-saver).

Nothing is better than family reunification. Except family reunification with cake!

The second thing to know about this manual is that it is terrific. It covers all the basics, and provides ideas to assist in many problematic situations. It also doesn’t hurt that it is available for free. So kudos to authors Rebecca R. Schaeffer and Katherine Reynolds, and to the organizations who helped make the manual possible: CLINIC, Church World Service, Elon University, and UNHCR.

In this post, I obviously cannot cover or even summarize the material contained in the family reunification manual. Instead, I want to give an overview of the I-730 process for asylees (as opposed to refugees) and to talk about what to expect when you file an I-730 Asylee Relative Petition for a family member.

First, only spouses and children can benefit from an I-730 petition. For spouses, the marriage must have existed prior to the approval of the asylum application. Also, there are certain restrictions about who is considered a spouse: Proxy marriages and polygamous marriages generally do not count. Children generally include biological children, step-children, adopted children, children born out of wedlock, and even unborn children. The child must have been under 21 at the time the principal’s I-589 was filed. Also, the child must remain unmarried until the I-730 is approved and the child/beneficiary is in the United States. There are exceptions to all these rules–and exceptions to some of the exceptions. The manual covers a number of different situations, but if you are not sure, talk to a lawyer. Aside from spouses and children, no other relatives can benefit from an I-730.

The I-730 cannot be filed until asylum is granted, and it must be filed within two years of the date asylum is approved (again, there are exceptions). A separate I-730 must be filed for each family member.

When we file an I-730 for one of our asylee clients, we generally include proof of asylum status (copy of the approval letter or Immigration Judge’s order), proof of identity (copy of passport or other identity document), evidence of the relationship (copy of marriage certificate or birth certificate), evidence of the beneficiary’s identity (copy of passport), and two passport-style photos of the beneficiary. Depending on the case, evidentiary requirements vary, so talk to a lawyer to be sure.

Beneficiaries who are inside the U.S. will receive an interview at their local USCIS office and, if approved, they will receive asylum status. It is possible to file for a family member who is in the United States even if the person entered the country illegally or overstayed a visa, or if the person has criminal or immigration issues, including people with a final order of removal. However, such cases are complicated, and starting the I-730 process for such a person could cause more harm than good. So if a potential I-730 beneficiary has criminal or immigration issues, it is important to consult with a lawyer before you start the I-730 process.

Where the beneficiary is overseas, USCIS will forward the I-730 (via the National Visa Center) to the appropriate embassy. The embassy will contact the beneficiary about a medical exam and other required evidence (which varies from embassy to embassy), and to schedule an interview. If the case is approved, the beneficiary will receive a travel packet, which acts like a visa and allows her to come to the United States as long as the “visa” is valid. Upon arrival, the person will undergo another inspection at the airport, and–if all goes well–enter the U.S. as an asylee.

As the manual points out, the processing time for an I-730 is not predictable. Most cases where the beneficiary is inside the U.S. take at least a year. Cases where the beneficiary is overseas take longer–a two year wait is not uncommon. In my office, we have seen cases go more quickly, but that is not the norm, especially these days. For cases outside the normal processing time, it is possible to make an inquiry. Pages 57 to 60 of the manual give some helpful advice on that score.

A few final points: For the interview, adult beneficiaries should have some awareness of the principal’s asylum case. Beneficiaries are often not questioned about the principal’s case, but if they are, it is better to know the basics (and if you do not know the answer, don’t guess; say “I don’t know“). Also, any documents not in English that are submitted with the I-730 should include certified English translations. Original documents are generally expected at the interview, so try to make sure the beneficiary has those. Lastly, remember that if a principal asylee becomes a U.S. citizen, or if the relationship ends through death or divorce, and the dependent is still an asylee (as opposed to a lawful permanent resident), the dependent will lose his status (and have to apply for nunc pro tunc asylum). For this reason, it is best for dependents to apply for residency as soon as they are eligible.

So I guess that is a wrap for 2019. I wanted to end on a positive note–and there is nothing more positive in asylum-land than family reunification. I wish you all a Happy New Year, and I hope to see you in the 2020’s.

As you might have heard, the White House recently issued a new travel ban (official known as the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and this one looks more likely to survive a court challenge than previous bans. This time around, the “banned” countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and certain government officials from Venezuela.

Here I want to look at how the ban will impact asylum seekers, asylees (people who already have asylum), and I-730 petitions, which are petitions filed by asylees to bring their relatives (spouse and minor, unmarried children) to the United States. One caveat: Even though the latest travel ban seems more well-crafted than prior iterations, it likely will still be subject to court challenges, and it will have to be interpreted and implemented by various government agencies, so how individuals will actually be affected is not yet entirely clear. With that out of the way, here’s how things look now:

Asylum Seekers

The short answer here is that asylum seekers who are already in the U.S. should not be affected by the new ban. Section 6(e) provides–

Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

Also, it appears that asylum seekers who want to travel while their cases are pending, using Advance Parole, should be able to do so. Section 3(b) states–

The suspension of entry pursuant to section 2 of this proclamation shall not apply to… any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on the applicable effective date under section 7 of this proclamation [all bars will be in effect by October 18, 2017] or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission.

The original travel ban (from January 2017) was intended to impact asylum seekers. Basically, USCIS was directed to adjudicate their cases up until the decision, but to hold the decision until the ban was lifted. That never actually went into effect. This new ban, which is more carefully tailored, does not seem to impose any restrictions or limitations on the asylum process or on asylum seekers, and so we can expect that such cases will proceed as before.

Asylees

People who have been granted asylum are asylees. I see nothing in the proclamation that would inhibit asylees’ rights in the U.S. They should be able to work, travel (using an appropriate travel document), and eventually get their green card and their U.S. citizenship as before.

I-730 Petitions

When a person is granted asylum, she can file to bring her spouse and minor, unmarried children to the United States using a form I-730. Whether people from the banned countries will still be able to bring their “following to join” family members here may be problematic, at least as I read the President’s order. Section 3(a) states–

[S]uspensions of and limitations on entry… shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation; (ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation [certain individuals whose visas were marked revoked or canceled by the first travel ban].

Basically, this means that people outside the U.S. from a “banned” country cannot get a visa to come here. There are some exceptions to this rule in section 3(b), but none of them seem to apply to I-730 beneficiaries. The closest I can see to an exception for following-to-join asylees appears in section 3(b)(vi)–

The suspension of entry pursuant to section 2 of this proclamation shall not apply to… any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Perhaps I-730 beneficiaries can argue that they fall within this exception, but frankly, I don’t see it. If these beneficiaries do not meet an exception, they can apply for a waiver to allow them to join their asylee relative in the U.S., even though they are banned from coming here. The waiver process, discussed in section 6(c), seems complex, but the short answer is that waivers are granted in the discretion of the consular officer or other government official and are issued on a case-by-case basis. Further–

A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest.

The proclamation gives some examples of when a waiver might be appropriate, including where the “foreign national has previously established significant contacts with the United States” or where “the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship.” None of the examples specifically refers to asylees or I-730 beneficiaries, and so there is an open question about whether such people are able to join their asylee family members in the United States.

We will have to see how the Trump Administration implements the ban with regards to I-730s. Hopefully, such people will be allowed to join their family members in the U.S. If not, you can bet that the matter will be litigated in court, and I imagine that the asylees would have a strong case. The United States has ratified the Protocol on the Status of Refugees, and so that treaty has the force and effect of law. The Protocol (and the Refugee Convention that is incorporated into the Protocol) essentially commits treaty countries to ensure family unity for refugees. See also INA 208(b). A Presidential proclamation cannot nullify this law, and so any attempt by the Trump Administration to block following-to-join relatives will likely not succeed, though of course the Administration can throw obstacles in the way of such people and cause plenty of hardship, stress, and uncertainty for this already-vulnerable group of individuals.

So there you have it. Again, we will have to wait to see how the new ban is implemented and whether it will be affected by litigation. Hopefully, my concerns about I-730 beneficiaries will not come to pass, and asylum seekers, asylees, and their family members will not be harmed by the latest travel ban.

UPDATE – October 9, 2017 – The U.S. State Department has issued guidance indicating that I-730 beneficiaries will not be affected by the new proclamation, and so following-to-join beneficiaries will still be able to join their asylee family members in the United States. Thank you to “Jabi” for letting us know about the good news.

The I-730 Process: Bringing Family Members Together

The New Travel Ban, Asylum Seekers, and I-730 Petitions