Securing Immigration Benefits for Spouses and Children of Asylees
Section 208 of the Immigration and Nationality Act is the law that governs the U.S. asylum program. The specific eligibility requirements and procedures for applying to bring your spouse or children to the United States as asylees are included in the Code of Federal Regulations (CFR) at 8 CFR § 208.21.
Who Is Eligible?
You may apply for derivative asylum status for your spouse or unmarried children under the age of 21 at the same that you apply for asylum in the U.S. (if they are in the U.S.) or by filing a petition within two years of your grant of asylum so they may follow to join you in the U.S. However, this two year period may be extended by USCIS for humanitarian reasons.
If your spouse or children are already in the United States, they may be eligible for derivative asylum benefits regardless of whether they are in the country legally. In order for them to receive derivative asylum benefits based on your granted application your I-589 application must:
If your spouse and/or children were not granted asylum as derivatives on your application you can petition for them to receive asylum by filing Form I-730, Refugee/Asylee Relative Petition. The relationship between you and your spouse and children must have existed when you were granted asylum and must continue to exist when you file Form I-730 and when your spouse and children are admitted to the United States as derivative asylees.
If your children are outside the United States and have been approved for derivative asylum benefits, your children will be able to come to the United States as asylees at any time as long as they were under 21 at the time you filed your asylum application and are currently unmarried. If your spouse is outside the United States and has been approved for derivative asylum benefits, your spouse will be able to come to the United States as an asylee at any time as long as your spouse remains married to you.
You may apply for derivative asylum status for a child who was already conceived, but not yet born, on the day you were granted asylum.
You may apply for derivative asylum status for a step-child if the marriage between you and the child's parent took place before the child's 18th birthday.
You may apply for derivative asylum status for an adopted child if the adoption took place before the child's 16th birthday and the child has been in your legal custody and resided with you or your spouse for at least two years.
You may not apply for derivative asylum status for your child's mother unless she was married to you on the date you were granted asylum.
Parentage testing, also referred to as blood testing or DNA testing, may be requested only after initial and secondary forms of evidence have proven inconclusive. Tests will be conducted at the expense of the petitioner. Parentage testing must be conducted by an American Association of Blood Banks ("AABB") accredited laboratory. A current list of the AABB accredited parentage testing laboratories can be viewed on the American Association of Blood Banks website. You may also wish to read the Fact Sheet below about American Association of Blood Banks (“AABB”) Accredited Parentage Testing Laboratories.
How Do I Apply?
Application Procedures: Getting Derivative Asylum Status for Your Child
Your Application Responsibilities:
In all cases, if you, your spouse, or child has legally changed their name, evidence of any such legal name change must be submitted.
If you are a mother applying for asylum benefits for your child, you must file the following items with USCIS for each child:
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Form I-730, Refugee/Asylee Relative Petition (one for each child);
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Proof of your status as an asylee;
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A recent, clear photograph of your child; and
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A copy of your child's birth certificate showing your name and the name of your child.
If you are a father applying for asylum benefits for your child, you must file the following items with USCIS for each child:
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Form I-730, Refugee/Asylee Relative Petition (one for each child);
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Proof of your status as an asylee;
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A recent, clear photograph of your child;
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A copy of child's birth certificate showing your name and the name of the child;
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A copy of the marriage certificate if you are or were married to your child's mother;
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If your were never married to your child's mother, proof that the child was legitimated by civil authorities and evidence that a genuine parent/child relationship exists or existed, including but not limited to evidence proving that you have emotional and financial ties to the child; and
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A copy of any divorce decrees, death certificates, annulment decrees, or other evidence showing that any previous marriages entered into by you or the mother of your child ended legally.
If you are a stepparent applying for asylum benefits for your child, you must file the following items with the USCIS for each child:
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Form I-730, Refugee/Asylee Relative Petition (one for each child);
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Proof of your status as an asylee;
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A recent, clear photograph of your step-child;
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A copy of your step-child's birth certificate;
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A copy of the marriage certificate between you and your step-child's natural parent; and
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A copy of any divorce decrees, death certificates, annulment decrees or other evidence showing that any previous marriages entered into by you or the natural parent of your step-child ended legally
If you are an adoptive parent applying for asylum benefits for your child, you must file the following items with USCIS for each child:
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Form I-730, Refugee/Asylee Relative Petition (one for each child);
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Proof of your status as an asylee;
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A recent, clear photograph of your adopted child;
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A certified copy of the adoption decree;
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Evidence that you resided together with the child for at least two years; and
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A certified copy of the court order granting you custody of the child, only if you were granted legal custody of the child prior to the adoption.
Your Child's Application Responsibilities:
If your child is outside the United States, the child will be notified to go to their local U.S. consulate to complete the processing.
If your child is currently inside the United States, USCIS will notify you if the application is approved by sending you a Form I-797, Notice of Action.
A child who receives derivative asylum status cannot file a Form I-730 petition on behalf of any other relatives.
Please click on “Form I-730” to the right under Related Links for more information. Forms are also available by calling 1(800) 870-3676. No fees are required to submit Form I-730.
Application Procedures: Getting Derivative Asylum Status for Your Spouse
Your Application Responsibilities:
In order for your spouse to be granted derivative asylum, you must file the following items with USCIS:
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Form I-730, Refugee/Asylee Relative Petition;
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Proof of your status as an asylee;
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A recent, clear photograph of your spouse;
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A copy of your marriage certificate;
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A copy of any divorce decrees, death certificates, annulment decrees or other evidence showing that any previous marriages entered into by you or your spouse ended legally; and
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Any evidence of legal name change if you or your spouse changed your name
Your Spouse’s Application Responsibilities:
If your spouse is outside the United States, your spouse will be notified to go to their local U.S. consulate to complete the processing.
If your spouse is currently inside the United States, USCIS will notify you if the application is approved by sending you a Form I-797, Notice of Action.
A spouse who receives derivative asylum status cannot file a Form I-730 petition on behalf of other family members.
Please click on “Form I-730” to the right under Related Links for more information. Forms are also available by calling 1(800) 870-3676. No fees are required to submit Form I-730.
Will My Spouse or Child Get a Work Permit?
Your spouse or any child over the age of 14 will be eligible to work after their application for derivative asylum has been approved and they have been admitted to the United States. Upon their admission, USCIS will issue your spouse and children an I-94 Arrival and Departure record that will prove that your spouse and children are derivative asylees and are allowed to work in the United States. Your spouse or child also has the option of filing Form I-765, Application for Employment Authorization. This form can be filed at the same time that you file for derivative asylum status for your spouse and children, but a work permit will not be granted until after the Form I-730, Refugee/Asylee Relative Petition, filed on his or her behalf has been approved and your spouse and children are admitted to the United States. For more information, see “Benefits and Responsibilities of Asylees” or “How Do I Show My Employer That I Am Authorized To Work?” under Related Links on the right .
How Can I Check the Status of My Application?
Applications for derivative asylee status should be sent to the Nebraska Service Center. Please contact the Nebraska Service Center to check the status of your application. You should be prepared to provide specific information about your application. Please see "Case Status Online" under Related Links for complete instructions on checking the status of an application filed with USCIS.
How Can I Appeal?
If your application for derivative asylum benefits for your spouse or child is denied, you will receive a letter that will tell you why the application was denied. You will not be allowed to appeal a negative decision to a higher authority. However, you may submit a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. By filing these motions, you are asking the office to reexamine or reconsider their decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made. For more information, see “How Do I Appeal the Denial of My Petition or Application?” under Related Links.
Related Files
