What is derivative asylum for children of refugees and asylees?

If you were admitted to the United States as a principal refugee or if you were granted asylum in the United States in the last two years, you may be able to petition for your children to receive refugee or asylee status by filing a Form I-730, Refugee/Asylee Relative Petition on their behalf. This is known as derivative refugee or asylee status, because your children will be deriving this status from you after you were admitted to the United States as a refugee or received a grant of asylum.

To petition for your children to receive derivative refugee or asylee status, you must file Form I-730 with the United States Citizenship and Immigration Services (USCIS). The form must be filed within two years of your admission to the United States as a principal refugee or your grant of asylum, unless there are humanitarian reasons for filing the form after the two-year deadline.

If your Form I-730 is approved, your children will be granted derivative refugee or asylee status and will be able to come to or remain in the United States with you. Derivative refugee or asylee status allows your children to live and work in the United States indefinitely, just like you. They may also be able to apply for a green card (permanent residence) in the future.

 

Your children do not have to prove a persecution claim

Your child is not required to have a persecution claim that would qualify them independently as an asylee or refugee. They will be able to derive that status through their relationship to you. This means that your child does not need to demonstrate that they have been persecuted or have a well-founded fear of persecution in their home country based on their race, religion, nationality, membership in a particular social group, or political opinion.

Your child does not have to be the same nationality as you, and they may reside in their country of nationality or another country. This means that your child can be eligible for derivative refugee or asylee status even if they are not a citizen of the same country as you, and even if they have been living in another country for a period of time.

 

Requirements for a child’s derivative asylum application

 

1. Meet the legal definition of a “child”

To be eligible for derivative refugee or asylee status, your child must meet the requirements for the legal definition of “child,” which is defined in the Immigration and Nationality Act (INA) as an unmarried person under 21 years of age who is:

• A biological child of the principal refugee or asylee;
• An adopted child of the principal refugee or asylee;
• A stepchild of the principal refugee or asylee, if the marriage creating the step relationship occurred before the child’s 18th birthday; or
• A legitimated child of the principal refugee or asylee, if the legitimation occurred before the child’s 18th birthday and the child is recognized as the child of the legitimating parent by the law of the child’s residence or domicile.
• In addition to being under 21 years of age and unmarried, your child must meet any other requirements under the definition of “child” when you filed your asylum application or when you were interviewed for refugee status.

There are specific requirements that apply to adopted children, stepchildren, and legitimated children. For example, to be eligible for derivative refugee or asylee status as an adopted child, your child must have been adopted before the age of 16 and must have lived with you for at least two years. See 8 CFR § 207.7(b)(2). To be eligible for derivative refugee or asylee status as a stepchild, your child must have been the child of your spouse before your marriage, and the marriage creating the step relationship must have occurred before the child’s 18th birthday. See id. To be eligible for derivative refugee or asylee status as a legitimated child, your child must have been legitimated before their 18th birthday and must be recognized as the child of the legitimating parent by the law of the child’s residence or domicile. See Form i-730 at 4..

 

2. Born or conceived before parent’s admission to the U.S.

Your child must have been born or conceived before you were admitted to the United States as a refugee or received a grant of asylum. This means that your child must have been conceived or born before the date on which you were granted refugee or asylee status in the United States.

This requirement is in place because derivative asylum status is intended to allow certain family members of an asylee to come to or remain in the United States with the asylee. If a child was conceived or born after the asylee was granted asylum, they were not part of the family unit at the time the asylee was granted asylum, and therefore are not eligible for derivative asylum status.

However, it is possible for a child in that situation to be granted asylum based on their own individual circumstances. To be granted asylum, an individual must show that they have suffered persecution or have a well-founded fear of persecution in their country of origin based on one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. If the child can demonstrate that they meet these criteria, they may be eligible for asylum in the United States, even if they are not eligible for derivative asylum status.

 

3. Valid relationship at the time of the filing of the application

Your child must have a relationship to you when you filed the Form I-730, Refugee/Asylee Relative Petition, and when they are admitted to the United States (if applicable). This means that your child must be your biological or adopted child, stepchild, or legitimated child at the time you file the petition and at the time they are admitted to the United States, if applicable.

Similar to the requirement above, this requirement ensures family members of an asylee can come to or remain in the United States with the asylee. If your child does not have a qualifying relationship with you, they were not part of your family unit at the time you were granted asylum, and therefore are not eligible for derivative asylum status. However, as with above, it is possible for your child to be granted asylum based on their own individual circumstances, such as if they have suffered persecution or have a well-founded fear of persecution in their country of origin.

 

4. Child cannot be inadmissible on other grounds

If your child is seeking derivative refugee status, they must not be inadmissible under any of the grounds that apply to refugees.

Inadmissibility refers to certain factors that may make an individual ineligible to enter or remain in the United States. One common ground of inadmissibility for refugees is criminal activity. Section 1182(a)(2)(A)(i)(I) of Title 8 of the USC lists the ground of inadmissibility for crime involving moral turpitude, which applies to all aliens, including refugees. See, e.g., Ali v. Achim, 468 F.3d 462, 466 (7th Cir. 2006) (“An alien who commits a ‘crime of moral turpitude’ generally may not be admitted to the United States. 8 U.S.C. § 1182(a)(2)(A)(i)(I). But Congress has given the Attorney General and the Secretary of Homeland Security permissive discretion to waive a refugee’s inadmissibility ‘for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.’ 8 U.S.C. § 1159(c).”).

Other grounds of inadmissibility for refugees include security concerns, such as being a member of a terrorist organization. See, e.g., E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 673 (9th Cir. 2020) (“Individuals who are otherwise refugees may not apply for asylum if the Attorney General determines that they ‘ordered, incited, assisted, or otherwise participated’ in the persecution of another, based on a trait protected by the INA; ‘constitute a danger to the community of the United States’; committed a ‘serious nonpolitical crime’ outside the co.untry; are a ‘danger to the security’ of the country; [or] have engaged in terrorist activities. 8 U.S.C. § 1158(b)(2)(A)(i)–(vi).”).

An asylum application can also be denied if the applicant is likely to become a public charge, which means that the individual is likely to rely on the government for financial support. See 8 U.S.C. § 1182(a)(4)(A) (“Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.”).

 

5. Child cannot be mandatorily barred on other grounds

If your child is seeking derivative asylum status, they must not be subject to one of the mandatory asylum bars, including the persecutor bar. The persecutor bar applies to individuals who have been involved in the persecution of others.

For further details on derivative asylum, please see the USCIS’s official page.