Asylum Derivatives: Asylum Status for Spouses and Children

Asylum Derivatives

Many asylum seekers, asylees, and refugees wonder if they can include their family members in their application or if they can obtain status for their family members after being granted asylum in the United States. The answer? It all depends.

Family members that may be included as derivatives in asylum applications are limited to the asylee’s/refugee’s legal spouse, not common-law spouse, and children under the age of 21. In some instances, siblings may consolidate their cases if they have overlapping circumstances or claims, but that is not the same as being a derivative, it simply means that their cases involve the same facts and will be heard together as a matter of efficiency.

There are multiple factors that need to be considered. One factor is which agency will have jurisdiction over the potential asylee’s, spouse’s, and minor children’s asylum claim. It is important to know which agency has jurisdiction as it may impact whether the cases may be consolidated.

The Department of Justice (DOJ) has jurisdiction over individual’s in deportation/removal proceedings, meaning they are in Immigration Court or were served with a Notice to Appear either when crossing the border or some other time. In those instances, an Immigration Judge will decide whether the immigrant qualifies for asylum. The children and legal spouse must be included in the asylum application as derivatives prior to the Immigration Judge granting the asylum. For the common law spouse to be considered a derivative, the two will need to legally marry one another and update the application prior to the Immigration Judge’s final decision.

For individuals who are not in deportation/removal proceedings, United States Citizenship and Immigration Services (USCIS) has jurisdiction over the case. In these instances, a USCIS Asylum Officer will determine whether an immigrant is eligible for asylum. If approved, the children and spouse must be included in the application as derivatives prior to the Asylum Officer’s decision for the family members to also receive asylum.

However, what happens if the spouse or children were not included in the original asylum application? Generally, the asylee has 2 years after being granted asylum to file a Form I-730, Refugee/Asylee Relative Petition, to obtain asylee status for their legal spouse and children under the age of 21. Even in these types of cases, it is important to consult with an experienced immigration attorney as there may be certain nuances to the relative’s application that would need to be identified.

For example, the process differs for children who were adopted, step-children, or if the paternity of the child was ever questioned. Another issue that may arise is whether the child was conceived, but not yet born, before the asylee entered the United States. The derivatives past will also need to be evaluated to ensure that they are not subject to any bars that would disqualify the derivative family member from receiving asylum status. There are also some instances in which the 2 year deadline can be overcome so long as there is some humanitarian basis justifying the late filing.

Whether you are seeking asylum, or have already been granted asylum and are now filing an application for your family members, you should consult with an experienced immigration attorney to further evaluate your situation. Call us today at (201) 987-0036 to schedule a consultation so that we may evaluate whether you or your family members are eligible to receive asylee/refugee benefits.

DISCLAIMER: The information above is for general informational purposes only and is not intended to be construed as legal advice. Every individual’s case is different. Before taking any action on your case, you should first consult with a licensed attorney with the authority to practice in your jurisdiction. The information provided, and receipt or viewing, is not intended to create an attorney-client relationship or to be considered legal advice.