Research Directorate, Immigration and Refugee Board of Canada

1. Requirements for Refugees to Apply for Permanent Resident Status

The website of the US Citizenship and Immigration Services (USCIS) states that “U.S. immigration law requires refugees to apply for lawful permanent resident (LPR) status after they have been physically present in the U.S. for at least one year” (US 26 June 2017).

Section 209.1 of the US Code of Federal Regulations (CFR) provides the following regarding the adjustment of status [1] of refugees:

The provisions of this section shall provide the sole and exclusive procedure for adjustment of status by a refugee admitted under section 207 of the Act [Immigration and Nationality Act, INA] whose application is based on his or her refugee status.

1. Eligibility. (1) Every alien in the United States who is classified as a refugee under 8 CFR part 207, whose status has not been terminated, is required to apply to USCIS one year after entry in order for USCIS to determine his or her admissibility under section 212 of the Act, without regard to paragraphs (4), (5), and (7)(A) of section 212(a) of the Act. ….
2. Application. Upon admission to the United States, every refugee entrant will be notified of the requirement to submit an application for permanent residence one year after entry. An application for the benefits of section 209(a) of the Act must be submitted along with the biometrics required by 8 CFR 103.16 and in accordance with the applicable form instructions.
3. Medical examination. A refugee seeking adjustment of status under section 209(a) of the Act is not required to repeat the medical examination performed under §207.2(c), unless there were medical grounds of inadmissibility applicable at the time of admission. The refugee is, however, required to establish compliance with the vaccination requirements described under section 212(a)(1)(A)(ii) of the Act.
4. Interview. USCIS will determine, on a case-by-case basis, whether an interview by an immigration officer is necessary to determine the applicant’s admissibility for permanent resident status under this part.
5. Decision. USCIS will notify the applicant in writing of the decision on his or her application. There is no appeal of a denial, but USCIS will notify an applicant of the right to renew the request for permanent residence in removal proceedings under section 240 of the Act. If the applicant is found to be admissible for permanent residence under section 209(a) of the Act, USCIS will approve the application, admit the applicant for lawful permanent residence as of the date of the alien’s arrival in the United States, and issue proof of such status.
6. Inadmissible Alien. An applicant who is inadmissible to the United States as described in 8 CFR 209.1(a)(1), may, under section 209(c) of the Act, have the grounds of inadmissibility waived by USCIS except for those grounds under sections 212(a)(2)(C) and 212(a)(3)(A), (B), (C), or (E) of the Act for humanitarian purposes, to ensure family unity, or when it is otherwise in the public interest. An application for the waiver may be requested with the application for adjustment, in accordance with the form instructions. (US 1 Jan. 2019, Title 8, Part. 1, Sec. 209.1)

The USCIS website provides the following regarding eligibility for adjustment of status and inadmissibility:

• You properly file Form I-485, Application to Register Permanent Residence or Adjust Status;
• You were admitted into the United States as a refugee under section 207 of the Immigration and Nationality Act (INA);
• You are physically present in the United States at the time you file your Form I-485;
• You have been physically present in the United States for at least one year after your admission as a refugee at the time you file your Form I-485;
• Your refugee status has not been terminated;
• You have not already acquired permanent resident status; and
• You are admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.

…

Grounds of Inadmissibility

To qualify for a Green Card, you must be admissible to the United States. Reasons why you may be inadmissible are listed in the INA 212(a) and are called grounds of inadmissibility.

While in general, USCIS can only approve your Green Card application if none of the applicable grounds of inadmissibility apply to you. Certain grounds of inadmissibility do not apply to refugee adjustments. See USCIS Policy Manual, Volume 7, Part L, Refugee Adjustment.

In addition, some grounds of inadmissibility may be waived for refugees applying for adjustment of status. See Form I-602, Application by Refugee for Waiver of Grounds of Excludability. If a waiver or other form of relief is granted, USCIS may approve your application for a Green Card if you are otherwise eligible.

Eligibility requirements for waivers and other forms of relief vary. For more information on the grounds of inadmissibility and waivers, please see USCIS Policy Manual, Volume 7, Part L, Refugee Adjustment, Chapter 3 – Admissibility and Waiver Requirements. (US 26 June 2017, bold in original)

The following information on adjustment of status for refugees is available in the USCIS Policy Manual:

Refugees are required to have 1 year of physical presence in the United States at time of filing the application in order to be eligible to adjust status. For applicants who gained derivative refugee status through an approved relative petition and who were in the United States when the petition was approved, the 1 year period begins on the date the relative petition was approved.

Because the requirement is 1 year of physical presence and not just one year from the date of admission as a refugee, only time spent in the United States counts toward this requirement. Applicants who travel outside the United States within their first year of residence as a refugee will not meet this requirement until the cumulative amount of time spent in the United States is at least 1 year. …

1. Approval
   If the adjustment application is properly filed, the applicant meets all eligibility requirements, and the applicant satisfies admissibility and waiver requirements, then the officer must approve the application. Unlike most applications for adjustment of status, refugee adjustments are not discretionary, and the application may only be denied if the applicant is found to be ineligible, inadmissible, or if the application was improperly filed.
   …
2. Denial
   If the adjustment application is denied based on inadmissibility, the refugee should be placed into removal proceedings, provided there are applicable grounds of deportability under INA 237.
   If the adjustment application is denied based on improper filing, abandonment, or ineligibility, the applicant has not been inspected for admission and should not be placed into removal proceedings because no determination of admissibility has been made. The applicant continues to have refugee status until such time that the applicant is inspected and an admissibility determination is made.
   The officer should write a denial notice explaining the reasons for denial in clear language that the applicant can understand. There is no appeal from the denial, but the applicant may renew the application for adjustment while in removal proceedings before the Immigration Judge. (US 20 Dec. 2019, Vol. 7, Part. L, Chap. 2, Para. B and Chap. 5, Para. G)

Information on the procedure to renew the application for adjustment while in removal proceedings could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Procedures for Refugees to Apply for Permanent Resident Status

The USCIS website provides the following regarding the procedure to apply:

How to Apply

If you are a refugee and you have been physically present in the United States for at least one year, you must file Form I-485, Application to Register Permanent Residence or Adjust Status, to apply for a Green Card.

What to Submit (Principal Applicant)

If you are the principal applicant, you should submit the following documentation and evidence to apply for a Green Card:

• Form I-485, Application to Register Permanent Residence or Adjust Status;
  Note: Refugees do not need to pay the Form I-485 filing fee or the biometric services fee.
• Proof of your admission as a refugee (such as a copy of Form I-94, Arrival/Departure Record that shows the date you were admitted as a refugee);
• Evidence of one-year physical presence in the U.S.;
• Two passport-style photographs;
• Copy of your government-issued identity document with photograph;
• Copy of your birth certificate (if available);
• Copy of your passport page with nonimmigrant visa (if available);
• Copy of your passport page with admission or parole stamp (issued by a U.S. immigration officer) (if available);
• Copy of Form I-94, Arrival/Departure Record or copy of the U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable);
  Note: If CBP provided you with an electronic Form I-94 upon your arrival/admission to the United States, you may print out a paper version of the Form I-94 from the CBP website … ;
• Form I-693, Report of Medical Examination and Vaccination Record;
  Note: All refugee-based adjustment applicants must submit the vaccination record portion of Form I-693. Only applicants with “Class A” medical conditions must repeat the medical examination and submit a complete Form I-693. …
• Certified police and court records of criminal charges, arrests, or convictions (if applicable); and
• Form I-602, Application by Refugee for Waiver of Grounds of Excludability (if applicable). …

Family Members

If you are the spouse or unmarried child under 21 years of age of a refugee-based principal applicant and you were granted derivative refugee status based on your spouse or parent’s principal refugee admission, you may also apply for a Green Card. …

Eligibility Criteria for Adjustment of Status as Derivative Applicants

In order to be eligible for a Green Card as a refugee-based derivative applicant, you must meet the following requirements:

• You properly filed your Form I-485, Application to Register Permanent Residence or Adjust Status;
• You are currently the principal applicant’s spouse or child;
• You were admitted as an accompanying derivative of the principal refugee applicant or as a following-to-join beneficiary of an approved Form I-730, Refugee/Asylee Relative Petition;
• You are physically present in the United States at the time you file your Form I-485;
• You have been physically present in the United States for at least one year after admission as a refugee at the time you file your Form I-485;
• Your refugee status has not been terminated;
• You have not already acquired permanent resident status; and
• You are admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.

What to Submit (Derivative Applicants)

If you are a derivative applicant (a spouse or child), you should submit the following evidence to apply for a refugee-based Green Card:

• Form I-485, Application to Register Permanent Residence or Adjust Status;
  Note: Refugees do not need to pay the Form I-485 filing fee or the biometric services fee.
• Copy of documentation showing your relationship to the principal applicant, such as a marriage certificate, birth certificate, or adoption decree;
• Evidence of your admission as a refugee (such as a copy of the Form I-94, Arrival/Departure Record, or approved I-730 Petition filed on your behalf that shows the date you were granted refugee status as a derivative);
• Evidence of one-year physical presence in the U.S.;
• Two passport-style photographs;
• Copy of your government-issued identity document with photograph;
• Copy of your birth certificate (if available);
• Copy of your passport page with nonimmigrant visa (if available);
• Copy of your passport page with admission or parole stamp (issued by a U.S. immigration officer) (if available);
• Copy of Form I-94, Arrival/Departure Record or copy of the U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable);
  Note: If CBP provided you with an electronic Form I-94 upon your arrival/admission to the United States, you may print out a paper version of the Form I-94 from the CBP website … ;
• Form I-693, Report of Medical Examination and Vaccination Record;
  Note: All refugee-based derivative applicants must submit the vaccination record portion of Form I-693. Only certain derivative applicants must repeat the medical examination and submit a complete Form I-693. …
• Certified police and court records of criminal charges, arrests, or convictions (if applicable); and
• Form I-602, Application by Refugee for Waiver of Grounds of Excludability (if applicable). (US 26 June 2017, bold in original)

3. Consequences for Failure to Apply for Permanent Resident Status

Regarding possible consequences for failing to comply with the legal requirement for a refugee to apply for permanent residence, the website of the Office of Refugee Resettlement (ORR) of the US Department of Health and Human Services (HHS) states the following:

Refugees who do not file the I-485 after they have been in the U.S. for one year in refugee status are in violation of the INA and are at risk for immigration penalties including removal from the U.S. (US 24 July 2009)

Section 209(a) of the INA, corresponding to section 1159(a) of title 8 of the United States Code (USC), a collection of the laws of the US, provides the following regarding the adjustment of status of refugees:

(a) Inspection and examination by Department of Homeland Security

1. Any alien who has been admitted to the United States under section 1157 of this title-
   
   1. whose admission has not been terminated by the Secretary of Homeland Security or the Attorney General pursuant to such regulations as the Secretary of Homeland Security or the Attorney General may prescribe,
   2. who has been physically present in the United States for at least one year, and
   3. who has not acquired permanent resident status,
   shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of sections 1225, 1229a, and 1231 of this title.
2. Any alien who is found upon inspection and examination by an immigration officer pursuant to paragraph (1) or after a hearing before an immigration judge to be admissible (except as otherwise provided under subsection (c)) as an immigrant under this chapter at the time of the alien's inspection and examination shall, notwithstanding any numerical limitation specified in this chapter, be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien's arrival into the United States. (US 1952)

Citing various legal sources, a Human Rights Watch report published in 2009, entitled Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status, explains the following:

Pursuant to a memo issued in November 2001, ICE [Immigration and Customs Enforcement] interprets INA § 209(a) as authorizing ICE to detain refugees who have not presented themselves to adjust their legal status after one year. As recently as August 27, 2009, the government argued in litigation that INA § 209(a) “not only allows ... detention, it mandates it.”

Incongruously, immigration law does not permit refugees to apply for permanent resident status until after they have been physically present in the US for a year. Thus, although the law prohibits refugees from applying for adjustment of status until one year has passed, it appears to require detention if they have not obtained LPR status at the one year mark. A literal interpretation of the law would require that ICE take custody of nearly all resettled refugees after one year in the U.S., because it is technically impossible for any refugee to have independently applied for and obtained LPR status within the required time period. As the government points out, there is one way for a refugee to successfully adjust his status before the one year point and thus avoid detention: “a refugee could marry an [sic] lawful permanent resident or United States citizen and adjust through them.” However, barring this extreme tactic, ICE’s interpretation of the ambiguous language of INA §209 (a) would require detention of all resettled refugees after one year. In practice, ICE officers in Arizona and Pennsylvania detain primarily those refugees who have completed serving sentences for criminal offenses unrelated to immigration status.

Failure to adjust to LPR status is not a chargeable criminal or civil offense. Thus, resettled refugees may be detained for failure to file for adjustment of status, but the failure to file does not constitute a crime for which they are ever charged. Unlike punishments imposed for criminal convictions, where an individual serves a sentence of known duration, the length of detention for resettled refugees is indefinite. Individuals are kept in detention until they have completed their application for adjustment of legal status and that application has been fully adjudicated. This process may last 4-6 months, or in some cases longer than a year. If the initial application for a green card is denied, the applicant is then placed in proceedings to determine removability, which may last an additional 6-10 months, depending on the local court docket. Since DHS classifies detained refugees as “arriving aliens,” or as aliens present without admission or parole, they are not eligible for consideration for release from detention under bond during either the adjustment or removal proceedings, and therefore immigration judges lack the authority to determine whether their detention is warranted. (Human Rights Watch Dec. 2009, 8-9, ellipsis in original)

Corroborating information and more recent information could not be found among the sources consulted by the Research Directorate with the time constraints of this Response.

Media sources report that over 1,000 Iraqi nationals were subject to deportation orders in 2017 (CNA 9 Aug. 2019; Reuters 12 June 2017). According to a 2019 report from the Catholic News Agency (CNA), founded in 2004 and dedicated to “news affecting the Universal Church” (CNA n.d.a) and based in Englewood, Colorado (CNA n.d.b), “[t]he Iraqis had come to the U.S. legally but either failed to apply for a green card or had committed a misdemeanor or felony that disqualified them from citizenship” (CNA 9 Aug. 2019). Corroborating information and further information on the consequences for failure to apply for permanent resident status could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note

[1] “Adjustment of status” refers to applying for permanent residence status (“Green Card”) (US 26 June 2017).

References

Catholic News Agency (CNA). 9 August 2019. Matt Hadro. “Chaldean Catholic Dies in Iraq After U.S. Deportation.” [Accessed 14 Nov. 2019]

Catholic News Agency (CNA). N.d.a. “About Us.” [Accessed 25 Nov. 2019]

Catholic News Agency (CNA). N.d.b. “CNA Access for Editors.” [Accessed 25 Nov. 2019]

Human Rights Watch. December 2009. Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status. [Accessed 18 Nov. 2019]

Reuters. 12 June 2017. Mica Rosenberg. “U.S. Targets Iraqis for Deportation in Wake of Travel Ban Deal.” [Accessed 14 Nov. 2019]

United States (US). 20 December 2019. US Citizenship and Immigration Services (USCIS). Policy Manual. [Accessed 30 Dec. 2019]

United States (US). 1 January 2019. National Archives and Records Administration (NARA), Office of the Federal Register (OFR). “§209.1. Adjustment of Status of Refugees.” Code of Federal Regulations (CFR). [Accessed 14 Nov. 2019]

United States (US). 26 June 2017. US Citizenship and Immigration Services (USCIS). “Green Card for Refugees.” [Accessed 14 Nov. 2019]

United States (US). 24 July 2009 (reviewed 20 May 2019). US Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR). “Required Adjustment of Status to Lawful Permanent Resident by Refugees After One Year in U.S. in Refugee Status; Travel Abroad by Refugees and Requirement for Refugee Travel Document; Required Notification by Refugee of Change of Address.” State Letter No. 09-24. [Accessed 14 Nov. 2019]

United States (US). 1952 (amended 2014). Immigration and Nationality Act (INA). [Accessed 9 Dec. 2019]

Additional Sources Consulted

Oral sources, including: Americans for Immigrant Justice; Freedom House Detroit; US – Department of Homeland Security; US Committee for Refugees and Immigrants.

Internet sites, including: ecoi.net; EU – European Asylum Support Office; Factiva; MyAttorneyUSA; Nolo; Refugees International; UN – Refworld; US – Department of State, Foreign Affairs Manual and Handbook; US Committee for Refugees and Immigrants.