[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR207.7]



[Page 136-137]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 207_ADMISSION OF REFUGEES--Table of Contents

 

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 Act, shall 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 following 

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 (section 

101(a)(35) of the Act);

    (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; and

    (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 accompanying or following-to-join benefits and at the time of 

the spouse or child's subsequent 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 accompany or follow-to-join the refugee. The child's mother, 

if not the principal refugee, shall not be eligible to accompany or 

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 accompanying or following-to-join 

benefits for his/her spouse and unmarried, minor child(ren) (whether the 

spouse



[[Page 137]]



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. The Form I-730 may only be 

filed by the principal refugee. Family members 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 before February 28, 2000 or within 2 years of the 

refugee's admission to the United States, whichever is later, unless the 

Service determines that the filing period should be extended for 

humanitarian reasons. There is no time limit imposed on a family 

member's travel to the United States once the Form I-730 has been 

approved, provided that the relationship of spouse or child continues to 

exist and 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 accompanying or following-to-join benefits. Where possible this will 

consist of the documents specified in Sec. 204.2(a (1)(i)(B), 

(a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of this chapter. In addition, 

a recent photograph of each derivative must accompany the Form I-730. 

The photograph must clearly identify the derivative, and 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 principal 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 or asylee relative petition proceeding, if the refugee 

establishes eligibility for the accompanying or following-to-join 

benefits contained in this part.



[63 FR 3795, Jan. 27, 1998]