[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Proposed Rules]
[Pages 35984-35987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17265]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 207 and 208

[INS No. 1639-93]
RIN 1115-AD59


Procedures for Filing a Derivative Petition (Form I-730) for a 
Spouse and Unmarried Children of a Refugee/Asylee

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service (Service) regulations by providing procedures which must be 
followed by a refugee to bring his/her spouse and unmarried, minor 
child(ren) (derivatives) into the United States. This proposed rule is 
intended to respond to the family reunification needs of refugees by 
establishing an equitable and consistent following-to-join policy for 
refugees which parallels the current following-to-join procedures for 
asylees. This rule also proposes to amend asylum regulations by 
removing from the definition of qualifying relationship child(ren) born 
to or legally adopted by the principal alien and spouse after approval 
of the principal alien's asylum application.

DATES: Written comments must be submitted on or before September 9, 
1996.

ADDRESSES: Please submit written comments, in triplicate, to the Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 5307, Washington, DC 20536, Attention: 
Public Comment Clerk. To ensure proper handling, please reference INS 
No. 1639-93 on your correspondence. Comments will be available for 
public inspection at this location by calling (202) 514-3048 to arrange 
an appointment.

FOR FURTHER INFORMATION CONTACT: Ramonia Law-Hill, Senior Adjudications 
Officer, Adjudications Division, Immigration and Naturalization 
Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone 
(202) 514-5014.

SUPPLEMENTARY INFORMATION:

A. Background

    The United States refugee program places strong emphasis on family 
reunification and assigns priority for interviews to those refugee 
applicants who have immediate family members already in the United 
States. This emphasis on reunifying families also extends to those 
refugees who have been resettled in the United States, but who remain 
separated from their spouse and/or child(ren). In such cases, refugees 
may file to have their spouse and/or child(ren) ``follow-to-join'' them 
in the United States. The following-to-join provisions for refugees is 
found in section 207(c)(2) of the Immigration and Nationality Act 
(Act).
    To apply for such benefits, refugees file Form I-730, Refugee/
Asylee Relative Petition, with the designated Service office. Such 
designation will be through separate action in the Federal Register. 
Spouses and unmarried, minor children (derivatives) who follow-to-join 
a refugee already in this country are admitted as refugees.

B. Need for Procedural Review and Revised Regulation

    Over the past year, it has become apparent that existing Service 
procedures regarding following-to-join benefits for refugees is 
inadequate and has resulted in confusion for the general public. 
Regulations are necessary to clarify procedures and to establish an 
equitable and consistent following-to-join policy for refugees which 
parallels that found in the current following-to-join regulations for 
asylees, who are also eligible to file Form I-730.
    In recent months the Service has received numerous telephone 
inquiries from members of Congress, the general public, voluntary 
agencies, and attorneys representing clients concerning the application 
of the following-to-join provisions found in section 207(c)(2) of the 
Act. Of primary concern has been the Service's requirement that the 
refugee's relationship to the spouse and/or child predates the date on 
which the refugee was granted refugee status. A Service memorandum 
issued on January 8, 1987, defined this date as the date of tentative 
approval, which has been interpreted by some as being the day of the 
refugee's interview. That interpretation, however, has not received 
Servicewide acceptance.
    The Service's recent initiative to combine the Form I-730 with the 
revised Form I-130 (Petition for Alien Relative), revealed differing 
practices for processing following-to-join petitions filed by refugees 
and those filed by aslyees. It was, therefore, determined that rather 
than consolidate the forms, the Service needed to review and, if 
necessary, revise existing policies relating to refugees and asylees.

C. Following-to-Join Issue

    In the absence of a time limit on the following-to-join 
regulations, individuals who entered the United States as conditional 
entrants in the late 1970s and refugees in the early 1980s are filing 
Form I-730 petitions for a spouse and/or child(ren). Following-to-join 
benefits are available to help refugees make the difficult transition 
to a new life with the support of their immediate family members. Forms 
I-730 filed ten or more years after admission no longer serve the 
purpose for which they were originally intended. Instead, they deplete 
limited refugee admission numbers and refugee resettlement monies 
needed for emerging refugee populations. The proposed regulations are 
intended to respond more fully to the family reunification needs of 
refugees, while establishing specific guidelines on the following-to-
join process.
    Current interpretations of the following-to-join benefits for 
refugees have created confusion for Service officers, attorneys, 
refugees, and the general public. While some interpret following-to-
join eligibility based on the refugee's date of admission, current 
practice requires the relationship to exist prior to the tentative 
approval date of the principal's application for refugee status. The 
Service determined that the current interpretation of following-to-join 
for refugees is too restrictive since it requires a refugee to meet a 
heavier burden for establishing a relationship with his/her spouse and 
unmarried, minor child(ren), than is required by regulation for a 
spouse and unmarried minor child(ren) of a citizen or lawful permanent 
resident of the United States. To resolve this disparity, the Service 
is adopting a more generous interpretation of the point at which a 
qualifying relationship exists for following-to-join benefits. This 
rule proposes that the refugee's date of admission be used to determine 
following-to-join eligibility. A refugee will then be able to file a 
separate Form I-730 for his/her spouse and/or each individual child if 
the relationship predates the refugee's date of admission to the United 
States, rather than the date of interview. The Service believes this 
proposal reflects the intent of Congress to reunite refugees with their 
families. Further, it alleviates inconsistencies in determining 
eligibility as is currently encountered

[[Page 35985]]

because of the difficulty in determining the date of tentative 
approval.
    Additionally, the Service has found that the benefit accorded 
asylees regarding children is too broad in that current asylum 
regulations extend following-to-join benefits to children born to, or 
adopted by, asylees at any point after the date of their approval. As a 
result, this rule will amend existing asylum regulations by requiring 
that, for purposes of filing a Form I-730, the asylee's relationship to 
a child exists on the date the asylee is granted asylum.
    Only refugees who entered the United States as principal aliens 
will be eligible to file the Form I-730 for following-to-join benefits 
for a spouse and/or each individual unmarried, minor child under this 
proposed rule. Those individuals who have derived their refugee status 
from the principal alien will not be eligible to file Form I-730.
    Past practice has allowed for the adjudication of Form I-730 filed 
by a son or daughter who claimed to be single in order to qualify as a 
member of a parent's refugee case, and who then petitioned for his/her 
spouse after arrival to the United States. As the proposed rule does 
not permit the filing of a Form I-730 by derivatives, this type of 
misrepresentation should be reduced. Only the spouse and unmarried, 
minor child(ren) of a refugee may benefit under the proposed following-
to-join regulation.
    Currently there is no established time to file for and receive 
following-to-join benefits, either for asylees or refugees. The 
proposed regulation will impose a 1-year time limit from the date of 
the principal's admission, within which a refugee or asylee must file a 
separate Form I-730 for each individual qualifying family member, 
unless it is clearly established that compelling circumstances preclude 
the timely filing of the application. Refugees or asylees who have 
resided in the United States for more than 1 year when this regulation 
becomes effective will be granted 1 year from the effective date of the 
final regulation in which to file Form I-730 for following-to-join 
benefits for their spouse and unmarried, minor child(ren). The Service 
may, however, waive the 1-year limit when it is determined that 
humanitarian reasons for extending the filing period exist. The 1-year 
limit refers only to the filing of the Form I-730. Such limit is not 
imposed on family members' travel to the United States, as the Service 
is aware of the impediments which may delay family members' travel for 
years following the refugee's arrival in the United States. The filing 
of the Form I-730 will serve to notify the Service of a refugee's or 
asylee's intent to have his/her spouse and/or child(ren) join him/her 
in the United States. The approval of the Form I-730 shall remain valid 
for the duration of the relationship to the refugee or asylee, and in 
the case of a child, while the child is under 21 years of age and 
unmarried, provided also that the principal's status has not been 
revoked.
    The Service has established what it believes to be a reasonable 
time limit on the filing of the Form I-730. It is further believed that 
derivative benefits for spouses and children of refugees was intended 
for the purpose of reuniting families and to avoid lengthy delays due 
to visa quotas. Timely filings will expedite the reunification of 
refugee families and ensure the removal of spouses and children of 
refugees from a country subjecting them to persecution on the basis of 
that relationship. Thus, refugees must file following-to-join petitions 
within 1 year of the date of their admissions; asylees within 1 year of 
being granted asylum status.
    While the rule proposes necessary bounds, such as adding 
eligibility requirements and establishing a filing period for 
following-to-join benefits, it is liberal in defining the point at 
which a qualifying relationship exists for this benefit. The proposed 
rule will clarify the Service's following-to-join policy for Service 
officers and the general public by standardizing refugee and asylee 
following-to-join procedures.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities because it is administrative in nature and merely 
imposes specific regulatory restraints, which parallel procedures 
currently found in asylum regulations.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
and waived its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulations proposed herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.
    The Commissioner of the Immigration and Naturalization Service 
certifies that she has assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that this regulation will 
enhance family well-being by establishing an equitable and consistent 
following-to-join policy for refugees which parallels the current 
following-to-join policy for asylees.

Paperwork Reduction Act

    The information collection requirement (Form I-730) contained in 
this rule is being revised by the Immigration and Naturalization 
Service. In accordance with the Paperwork Reduction Act, the Service 
published a notice in the Federal Register on May 3, 1996, at 61 FR 
19958, notifying the public of the revision to the Form I-730.

List of Subjects

8 CFR Part 207

    Immigration, Refugees, Reporting and recordkeeping requirements.

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 207--ADMISSION OF REFUGEES

    1. The authority citation for part 207 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1157, 1159; 8 CFR Part 2.


Sec. 207.1  [Amended]

    2. Section 207.1 is amended by removing paragraph (e).


Secs. 207.7 and 207.8  [Redesignated as Sec. 207.8 and Sec. 207.9]

    3. Sections 207.7 and 207.8 are redesignated as Sec. 207.8 and 
207.9 respectively.
    4. A new Sec. 207.7 is added to read as follows:


Sec. 207.7  Derivatives of refugees.

    (a) Eligibility. A spouse, as defined in section 101(a)(35) of the 
Act, and/or child(ren), as defined in section 101(b)(1)(A), (B), (C), 
(D), or (E) of the

[[Page 35986]]

Act, may be granted refugee status if accompanying or following-to-join 
the principal alien. An accompanying derivative is a spouse or child of 
a refugee who is in the physical company of the principal refugee when 
he or she is admitted to the United States, or a spouse or child of a 
refugee who is admitted within 4 months of the principal refugee's 
admission. A following-to-join derivative, on the other hand, is a 
spouse or child of a refugee who seeks admission more than 4 months 
after the principal refugee's admission to the United States.
    (b) Ineligibility. The following relatives of refugees are 
ineligible for accompanying or following-to-join benefits:
    (1) A spouse or child who has previously been granted asylee or 
refugee status;
    (2) An adopted child, if the adoption took place after the child 
became 16 years old, or if the child has not been in the legal custody 
and living with the parent(s) for at least 2 years;
    (3) A stepchild, if the marriage that created this relationship 
took place after the child became 18 years old;
    (4) A husband or wife if each/both were not physically present at 
the marriage ceremony, and the marriage was not consummated;
    (5) A husband or wife if the U.S. Attorney General has determined 
that such alien has attempted or conspired to enter into a marriage for 
the purpose of evading immigration laws;
    (6) A parent, sister, brother, grandparent, grandchild, nephew, 
niece, uncle, aunt, cousin or in-law.
    (c) Relationship. The relationship of a spouse and child as defined 
in sections 101(a)(35) and 101(b)(1)(A), (B), (C), (D), or (E), 
respectively, of the Act, must have existed prior to the refugee's 
admission to the United States and must continue to exist at the time 
of filing for following-to-join benefits and admission to the United 
States. If the refugee proves that the refugee is the parent of a child 
who was born after the refugee's admission as a refugee, but who was in 
utero on the date of the refugee's admission as a refugee, the child 
shall be eligible to follow-to-join the refugee. The child's mother, if 
not the principal refugee shall not be eligible to follow-to-join the 
principal refugee unless the child's mother was the principal refugee's 
spouse on the date of the principal refugee's admission as a refugee.
    (d) Filing. A refugee may request following-to-join benefits for 
his/her spouse and unmarried, minor child(ren) (whether the spouse and 
children are in or outside the United States) by filing a separate Form 
I-730, Refugee/Asylee Relative Petition, for each qualifying family 
member with the designated Service office. Persons who derive their 
refugee status from the principal applicant are not eligible to file 
Form I-730. The Form I-730 may only be filed by the principal 
applicant. Family members, such as unmarried sons and daughters who 
derived their refugee status, are not eligible to file the Form I-730 
on behalf of their spouse and child(ren). A separate Form I-730 must be 
filed for each qualifying family member within 1 year of the refugee's 
admission to the United States, unless the Service determines that the 
filing period should be extended for humanitarian reasons. There is, 
however, no time limit imposed on family members' travel to the United 
States once the Form I-730 for following-to-join benefits has been 
approved, provided approval of the Form I-730 petition has not been 
subsequently revoked. There is no fee for filing this petition.
    (e) Evidence. Documentary evidence consists of those documents 
which establish that the petitioner is a refugee, and evidence of the 
claimed relationship of the petitioner to the beneficiary. The burden 
of proof is on the petitioner to establish by a preponderance of the 
evidence that any person on whose behalf he/she is making a request 
under this section is an eligible spouse or unmarried, minor child. 
Evidence to establish the claimed relationship for a spouse or 
unmarried, minor child as set forth in 8 CFR part 204 must be submitted 
with the request for following-to-join benefits. Where possible this 
will consist of the documents specified in Sec. 204.2(a)(1)(i)(B), 
(a)(1)(iii)(E), (a)(2), (d)(2), and (d)(5) of this chapter. In 
addition, a recent photograph of each derivative must accompany the 
Form I-730. Although the photograph need not meet Alien Documentation 
Identification and Telecommunication System (ADIT) specifications, it 
must clearly identify the derivative. The photograph will be made part 
of the derivative's immigration record for identification purposes.
    (f) Approvals. (1) Spouse or child in the United States. When a 
spouse or child of a refugee is in the United States and the Form I-730 
is approved, the Service will notify the refugee of such approval on 
Form I-797, Notice of Action. Employment will be authorized incident to 
status.
    (2) Spouse or child outside the United States. When a spouse or 
child of a refugee is outside the United States and the Form I-730 is 
approved, the Service will notify the refugee of such approval on Form 
I-797. The approved Form I-730 will be sent by the Service to the 
Department of State for forwarding to the American Embassy or Consulate 
having jurisdiction over the area in which the refugee's spouse or 
child is located.
    (3) Benefits. The approval of the Form I-730 shall remain valid for 
the duration of the relationship to the refugee and, in the case of a 
child, while the child is under 21 years of age and unmarried, provided 
also that the principal's status has not been revoked. However, the 
approved Form I-730 will cease to confer immigration benefits after it 
has been used by the beneficiary for admission to the United States as 
a derivative of a refugee. To demonstrate employment authorization, the 
Service will issue a Form I-94, Arrival-Departure Record, which also 
reflects the derivative's current status as a refugee, or the 
derivative may apply under Sec. 274a.12(a) of this chapter, using Form 
I-765, Application for Employment Authorization, and a copy of the Form 
I-797.
    (g) Denials. If the spouse or child of a refugee is found to be 
ineligible for derivative status, a written notice explaining the basis 
for denial shall be forwarded to the refugee. There shall be no appeal 
from this decision. However, the denial shall be without prejudice to 
the consideration of a new petition or motion to reopen the refugee and 
asylee relative petition proceedings, if the refugee establishes 
eligibility for the following-to-join benefits contained in this part.

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

    5. The authority citation for part 208 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C. 
9701; 8 CFR part 2.

    6. In Sec. 208.21, paragraphs (b), (c), (d), and (f) are revised to 
read as follows:


Sec. 208.21  Admission of asylee's spouse and children.

* * * * *
    (b) Relationship. The relationship of spouse and child as defined 
in sections 101(a)(35) and 101(b)(1) of the Act must have existed at 
the time the principal alien's asylum application was approved. If the 
asylee proves that the asylee is the parent of a child who was born 
after asylum was granted, but who was in utero on the date of the 
asylum grant, the child shall be eligible to follow-to-join the asylee. 
The child's mother, if not the principal asylee, shall

[[Page 35987]]

not be eligible to follow-to-join the principal asylee unless the 
child's mother was the principal asylee's spouse on the date of the 
principal asylee's grant as an asylee.
    (c) Spouse or child in the United States. When a spouse or child of 
an alien granted asylum is in the United States, but was not included 
in the asylee's application, the asylee may request following-to-join 
benefits for his/her spouse or child by filing for each qualifying 
family member a separate Form I-730, Refugee/Asylee Relative Petition, 
and supporting evidence, with the designated Service office, regardless 
of the status of that spouse or child in the United States. The Form I-
730 must also be accompanied by a recent, clear non-ADIT style 
photograph for each derivative. The photograph will be used for 
identification purposes and will be placed in the derivative's 
immigration record. Additionally, a separate Form I-730 must be filed 
by the asylee for each qualifying family member within 1 year of the 
date in which he/she was granted asylum status, unless it is determined 
by the Service that this period should be extended for humanitarian 
reasons. Upon approval of the Form I-730, the Service will notify the 
asylee of such approval on Form I-797 ``Notice of Action.'' Employment 
will be authorized incident to status. To demonstrate employment 
authorization, the Service will issue a Form I-94, Arrival-Departure 
Record, which also reflects the derivative's current status as an 
asylee, or the derivative may apply under Sec. 274a.12(a) of this 
chapter, using Form I-765, Application for Employment Authorization, 
and a copy of the Form I-797. The approval of the Form I-730 shall 
remain valid for the duration of the relationship to the asylee and, in 
the case of a child, while the child is under 21 years of age and 
unmarried, provided also that the principal's status has not been 
revoked. However, the approved Form I-730 will cease to confer 
immigration benefits after it has been used by the beneficiary for 
admission to the United States as a derivative of an asylee.
    (d) Spouse or child outside the United States. When a spouse or 
child of an alien granted asylum is outside the United States, the 
asylee may request following-to-join benefits for his/her spouse or 
child(ren) by filing a separate Form I-730 for each qualifying family 
member with the designated Service office, setting forth the full name, 
relationship, date and place of birth, and current location of each 
such person. The Form I-730 must be accompanied by a recent, clear non-
ADIT style photograph for each derivative. A separate Form I-730 for 
each qualifying family member must be filed within 1 year of the date 
in which the asylee was granted asylum status, unless the Service 
determines that the filing period should be extended for humanitarian 
reasons. When the Form I-730 is approved, the Service will notify the 
asylee of such approval on Form I-797. The approved Form I-730 shall be 
forwarded by the Service to Department of State for delivery to the 
American Embassy or Consulate having jurisdiction over the area in 
which the asylee's spouse or child is located. The approval of the Form 
I-730 shall remain valid for the duration of the relationship to the 
asylee and, in the case of a child, while the child is under 21 years 
of age and unmarried, provided also that the principal's status has not 
been revoked. However, the approved Form I-730 will cease to confer 
immigration benefits after it has been used by the beneificary for 
admission to the United States as a derivative of an asylee.
* * * * *
    (f) Burden of proof. To establish the claimed relationship of 
spouse or child as defined in sections 101(a)(35) and 101(b)(1) of the 
Act, evidence must be submitted with the request as set forth in part 
204 of this chapter. Where possible this will consist of the documents 
specified in Sec. 204.2 (a)(1)(i)(B), (a)(1)(iii)(E), (a)(2), (d)(2) 
and (d)(5) of this chapter. The burden of proof is on the principal 
alien to establish by a preponderance of the evidence that any person 
on whose behalf he or she is making a request under this section is an 
eligible spouse or child.
* * * * *
    Dated: May 7, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-17265 Filed 7-8-96; 8:45 am]
BILLING CODE 4410-10-M