Gilbert said:This comes from the legal code:
"Not more than 10,000 of the refugee admissions authorized under section 207(a) in any fiscal year may be made available by the Attorney General, in the Attorney General's discretion and under such regulations as the Attorney General may prescribe, to adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who -
(1) applies for such adjustment,
(2) has been physically present in the United States for at least one year after being granted asylum,
(3) continues to be a refugee within the meaning of section 101(a)(42)(A) or a spouse or child of such a refugee,
(4) is not firmly resettled in any foreign country, and
(5) is admissible (except as otherwise provided undersubsection (c)) as an immigrant under this Act at the time of examination for adjustment of such alien. Upon approval of an application under this subsection, the Attorney General shall establish a record of the alien's admission for lawful permanent residence as of the date one year before the date of the approval of the application.
(c) The provisions of paragraphs (4), (5), and (7)(A) of section 212(a) shall not be applicable to any alien seeking adjustment of status under this section, and the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest."
That said, they generally assume that you have continued persecution and do not require any specific proof to that effect. They will of course contact you if they believe your case merit attention on this score. This is likely only for people who use national passports or visit there.
jw1951 said:What does "in the Attorney General's discretion and under such regulations as the Attorney General may prescribe" mean?
Despondent said:I'm confused. So, basically, what you're saying is that a CIS officer can deny a petition outside of the scope of legislative or administrative guidelines.
So, if the CIS officer determines that someone's blue hair, tatoos, and numerous body piercings demonstrate that he/she no longer fears persecution in their country of origin the AOS application can be arbitrarily denied?
jw1951, notice the conjuctive "and" in the aforementioned grant of discretionary power to the Attorney General. That means, there MUST be a guideline for those implementing Atty. Gen.'s discretionary power, namely, the officers. If there was an "or" instead of "and", it would be a different story.
The grant of GC, or asylum for that matter, is not at CIS officers' "pleasure".
Despondent said:Thank you for clarifying, Gilbert. At "CIS officer's pleasure" infers that a case can be denied for arbitrary reasons.
So, in summary, the statutory language prohibits capricious behavior by reigning in the officers under the Atty Gen., & the Supreme Court cases reaffirm that they are not to act in an unreasonable manner.
What that basically means is that both Congress and the AG are safeguards against administrative powermongering on the implementation level, namely, CIS officers.
And that's why asylees can keep their blue hair, tatoos, and piercings without worry that some CIS officer may deny their AOS...however "pleasurable" that may be to him/her.
Peach said:manishg_in,
If your “friend” gets married it would have a major issue on her adjustment.
She has a derivative asylum status. In order to get her GC she must stay “a child” for as long as it takes.
After she gets married she won’t qualify as a dependent, will lose the derivative status and won’t be eligible to adjust her status to the permanent resident anymore as a derivative.
She should file Nunc-pro-tunc alylum application in order to proceed with GC.
According to Affirmative Asylum Procedures Manual she only has one year after “getting aware of lose of derivative status” (means one year after you two get married) to apply for Nunc-pro-tunc .
It shouldn’t be a problem. She won’t have to prove any fear of prosecutions and her status will be backdated to the date she got her derivative status.
BUT – she cannot include you (the husband) in her Nunc-pro-tunc application or petition I-730, Refugee/Asylee Relative Petition for you. If she wishes to include you in her grant of asylum, she must file a regular principal asylum application (Form I-589) and be interviewed on its merits. If approved, the approval cannot be dated back to the original date of the grant of derivative status.
She would have to start over and file another I-485 after a year of her grant of asylum.
She will file I-730 for you, and, after it gets approved, you’ll get your EAD,
And then, in about another 10 to 14 years – the green card.
If during the interview asylum officer think she has no fear to go back home, or for any other reasons he/she will find her ineligible and deny her application – your wife will face deportation and big $$ to appeal for both of you.
The “follow to join” has nothing to do with asylum applicants and by marrying her now you will not get a green card any time soon. In order to derive benefits from a primary applicant, the relationship (parent/child and husband/wife) must exist BEFORE the application for asylum gets approved.
Sorry, but this is how it works.
Furthermore: the fact your fiancé had her fingerprints taken in July 2004 means nothing. Just a standard procedure before a long-long wait. If she filed I-485 in July 2003 then her turn for the Green Card will be somewhere in Oct. 1, 2013-Sept. 30, 2014 .
Check this out: http://uscis.gov/graphics/fieldoffices/nebraska/asyleeadj.htm
You might have to let her file a Nunc-pro-tunc on her own and wait till she gets her GC and sponsor you. Or you can try your employer. But… I am just a person at the computer, who been waiting for my own GC for too long.
You should definitely talk to the god immigration lawyer about your best option.
Good luck!