Trying to adjust asylee wife's status through my Citizenship

[jameel1]

Hi everyone. I would really appreciate some help/feedback/guidance here.
I got my US citizenship a few months ago, based on Asylum. My wife is an asylee too (not a derivative asylee). When she came to the US 7 years ago, she came on a J-1 visa. She never joined the J-1 program here and within a few months, filed for asylum, which was granted. Since then, she has been living in the US as an asylee. The last time she went out of the country (not to country of origin), she travlled on a travel document and her I-94 was stamped as Asylee.
She did not apply for a Grren Card based on her asylum status and now that I got my Citizenship, I applied for I-485 (adjustment of status) for her based upon marriage to a US citizen.
We went for the interview at the USCIS office today and were shocked when the officer there told us that he "thinks" that the J-1 status that she had (before she was granted asylum) still "holds" and that she would need to fulfill the 2 year home country residency requirement (associated to J-1 visas) before she can get a Green Card. I asked him how that could be possible. How can you ask someone who is a political asylee to go back to their country of origin (from which they were given asylum in the first place) for 2 years? He said that he will research it more and let us know within a month but he was pretty sure that the J-1 would hold. I asked him whether or not it was true that once asylum is granted, everything else (prior to that) gets erased...such as what visa you came on etc...and he did not answer that.
I am looking for some online documentation that I can send to USCIS to prove to them that my wife is eligible for Green card. I did ask the officer that how come even people who have been living in the US for years illegally get a Green Card when they marry a US Citizen and he was not willing to approve my wife's Green Card even though my wife has never been out of status.

You help will be highly appreciated.

Thanks,

 

[thankful]

Unfortunately a grant of asylum automatically excuses the 2 year home country residency requirement if and only if you apply for your green card as an asylee. If you apply for a green card for another reason (like a spouse of a citizen) there is no automatic waiver.

I see two options for you

(1) Your wife can apply for a waiver of the requirement because of persecution by filing an I-612 application with the USCIS. It is like applying for asylum all over again. She has to prove to the USCIS why she would be harmed in her country. And the legal standard for approving this is even tougher than for asylum. The process can take a long time because to get the waiver both the Departments of Homeland Security and State have to say OK.

(2) Withdraw your I-485 and reapply as an asylee. Then you can take advantage of the automatic waiver and can be granted a green card pretty quickly.

jameel1, i do not understand why you applied for adjustment as spouse of a citizen while you had a route that was much easier and pretty much painless. Use the gift they gave you in the form of asylum!!!!!

feel free to contact me using PM if you have more questions.

 

[thankful]

I did ask the officer that how come even people who have been living in the US for years illegally get a Green Card when they marry a US Citizen and he was not willing to approve my wife's Green Card even though my wife has never been out of status.


Thanks,

This is editorializing and does not help you. The USCIS is bound by laws written by Congress. And the laws have a path for people granted asylum if they apply for their green card as asylees!!

Do you guys have a lawyer?

 

[jameel1]

Thankful, Thank you so much for your reply.

Yes, we do have a lawyer and our lawyer did accompany us to the interview. She told us that we are OK and after completing his research, the immigration officer would give us the approval. She also said that once asylum is granted, it wipes the slate clean, unless and until you used some fraudulent way to get the asylum.

It kind of made sense to me too since the 2 year home country residency condition would not make sense for an asylee. How can you be expected to go back to the country from which you escaped persecution. Also, my understanding is that when you get asylum, that is your new status and the status that you had before that does not apply anymore.

I have been looking hard online to find some clear data on this issue but so far have not been successful. Would you happen to know where to find some solid information on this issue.

I do realize that it would have been easier to apply for GC based upon my wife's asylum but now I am not sure how long that would take. My GC took for ever to come. That kind of discouraged me for applying for asylum based GC's.

Thanks again.

 

[thankful]

Thankful, Thank you so much for your reply.

Yes, we do have a lawyer and our lawyer did accompany us to the interview. She told us that we are OK and after completing his research, the immigration officer would give us the approval. She also said that once asylum is granted, it wipes the slate clean, unless and until you used some fraudulent way to get the asylum.

It kind of made sense to me too since the 2 year home country residency condition would not make sense for an asylee. How can you be expected to go back to the country from which you escaped persecution. Also, my understanding is that when you get asylum, that is your new status and the status that you had before that does not apply anymore.

I have been looking hard online to find some clear data on this issue but so far have not been successful. Would you happen to know where to find some solid information on this issue.

I do realize that it would have been easier to apply for GC based upon my wife's asylum but now I am not sure how long that would take. My GC took for ever to come. That kind of discouraged me for applying for asylum based GC's.

Thanks again.

I do not know your specific facts (obviously). So I can only comment upon the general legal requirements. A grant of asylum does not "wipe" everything clean and a new status does not supersede the two year home residency requirement. I remember the General Counsel of the INS looking at this issue in the mid 1990s and reaching the conclusion I am saying here.

For example, if a person uses a false passport to enter the US, gets asylum and then applies for a green card as a spouse of a citizen, the asylum grant does not wipe out the use of the false passport which is a basis of denial of the I-485.

The only "solid" information I have is what the law says. Pursuant to Title 8, Part 209.2(b) of the Code of Federal Regulations, "An applicant for adjustment who has had the status of an exchange alien nonimmigrant under section 101(a)(15)(J) of the Act, and who is subject to the foreign resident requirement of section 212(e) of the Act, shall be eligible for adjustment [as an asylee] without regard to the foreign residence requirement." This is specific to asylum green card applications and will not help what you are trying to argue here.

 

[thankful]

I do realize that it would have been easier to apply for GC based upon my wife's asylum but now I am not sure how long that would take. My GC took for ever to come. That kind of discouraged me for applying for asylum based GC's.

Thanks again.

It would have taken about one year on average. The law was changed in 2005 to avoid the kind of excessive wait you had faced. It is a different animal now.

 

[jameel1]

It would have taken about one year on average. The law was changed in 2005 to avoid the kind of excessive wait you had faced. It is a different animal now.

Thanks again. I guess I was totally out of the loop and still thought that the yearly 20K cap on asylee GC's would make the wait as horrible as I had to face.

Question, now if we want to apply for asylee based GC, do we have to start everything (including biometrics, fingerprints etc) from scratch or can we use some of the stuff that has already been done with the current I-485 application based upon marriage to US Citizen?

Again, thanks so much for your help. It is highly appreciated.

 

[thankful]

It was a 10K per year cap and Congress removed it in April 2005. There is now no cap of any kind.

My guess is that you have to do the biometrics all over again. The USCIS is not exactly known for being efficient. If any consolation: as an asylee adjustment person she will get the one year roll back which she does not have as a citizen spouse. So her green card will be backdated. And because she is married to you (citizen) she can apply for citizenship within two years of actual approval (because of the roll back rule).