I don't mean to be a Negative Nelly, but why is it that when USCIS tries to make things better, it often creates more problems? The latest difficulty involves a (presumably) well-meaning effort to allow asylees to adjust status (i.e., get their Green Cards) more quickly. The problem is that the memo creating the new policy is confusing, and leaves us (or at least me) wondering about how best to conform to the new system.

Up until last week, if a person with asylum wanted to apply for a Green Card, she needed to have one year of physical presence in the United States after receiving asylum and before submitting form I-485, the application for lawful permanent residency. In other words, the asylee had to wait one year after the grant of asylum, and once the one year was complete, she could file her application for a Green Card. This one-year time period refers to "physical presence" in the U.S., and so if the asylee left the United States for two weeks, for example, she would have to wait one year and two weeks before applying for the Green Card (and of course, meet all the other requirements to qualify for residency).

Last week, USCIS issued a new Policy Alert that seems to indicate that asylees no longer need one year of physical presence in the U.S. at the time of filing the I-485. Rather, they must have one year of physical presence at the time USCIS adjudicates the I-485. From the Policy Alert--

To be eligible for adjustment of status, an asylee or refugee must have been physically present in the United States for at least 1 year after either being granted asylum status or admitted as a refugee.

Although this eligibility requirement is similar for asylees and refugees, USCIS guidance has differed on whether refugees and asylees are required to satisfy the physical presence requirement at the time of filing or the time of adjudication of adjustment of status.

USCIS is updating policy guidance to clarify that both asylees and refugees are required to satisfy the 1-year physical presence requirement at the time USCIS adjudicates the adjustment of status application, rather than at the time of filing.

Turning to the USCIS Policy Manual (which has been modified by the new Policy Alert), the relevant section explains--

Asylees may adjust status to a lawful permanent resident after being physically present in the United States for at least 1 year at the time of adjudication of the adjustment of status application. A principal asylee’s physical presence starts accruing on the date the asylee is granted asylum.

If a derivative asylee was physically present in the United States when USCIS approved their Refugee/Asylee Relative Petition (Form I-730) or the principal asylee’s Application for Asylum and for Withholding of Removal (Form I-589), whichever is applicable, then the derivative asylee may start accruing physical presence on the approval date of the petition or application. If the derivative asylee is living abroad when USCIS approves the Form I-730 petition, then the derivative asylee’s physical presence begins accruing on the date of admission as an asylee.

A footnote to this section adds--

Because USCIS’ practice and policy has varied with regard to whether the 1 year of physical presence was required at the time of filing or at the time of adjudication of the application, USCIS considers an asylee who was adjusted to lawful permanent residence despite not having accrued 1 year of physical presence at the time of filing their application for adjustment to have been lawfully admitted for permanent residence if the applicant had accrued 1 year of physical presence by the time of adjudication and the admission was otherwise lawful.

As I read all this, asylees are no longer required to wait one year after receiving asylum before they file for their Green Card. If an asylee files before completing the one year, he is eligible to obtain the Green Card, as long as he has accrued one full year in the U.S. prior to the time when USCIS adjudicates the I-485.

Given that it takes months or years for USCIS to adjudicate form I-485 for asylees, all this would seem to indicate that an asylee can now file for his Green Card as soon as he is granted asylum. By the time USCIS processes the application, the asylee will have been in the U.S. for one year, and will thus be eligible for the Green Card. If this is correct, it will save significant time. But of course, things are not so easy.

The main question is, When should an asylee file form I-485 to apply for the Green Card? The day after receiving asylum? Should she wait six months to be safer? Or wait 11 months to be super-safe?

Also, what happens if USCIS adjudicates the I-485 before the asylee has accrued one year of physical presence in the United States? Will the Agency issue an RFE (Request for Evidence) to delay the process and give the asylee sufficient time to meet the physical presence requirement? Or will it deny the I-485 and the asylee is out of luck (and out $1225)?

The Policy Alert does not answer these questions, and so we are left to speculate.

Given the absence of information, I expect to chart a middle course for my clients. Until we know more, I will advise my clients to accrue at least six months of physical presence in the U.S. before they file for a Green Card. It is very unlikely that USCIS will process an I-485 in less than six months, and so I think the risk is minimal (and of course, I will need to advise my clients about this risk). As we learn more, I may change how I approach asylee adjustments, but for now, this seems like a reasonable plan.

While I am certainly grateful that USCIS is taking steps to speed processing for asylee Green Cards, it would be helpful if the Agency could provide a bit more clarity. That way, asylees could file their adjustment applications and feel confident that they are eligible to receive a Green Card.

Originally posted on the Asylumist: www.Asylumist.com