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Originally posted by Pianist:
"Виза-93" ? Спасибо. Я был бы очень признателен, если бы вы узнали что-либо билее подробное об этом.

>Зы. Думаю, что адвокат вас обманул, да к тому же и не ту форму послал.
Я тоже так думаю. Однако, какую же форму он должен был подать ?

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In order to request benefits for an accompanying or following-to-join relative under section 207 of the Act, the petitioner must have been the PRINCIPAL APPLICANT for refugee status in the United States and not a person who DERIVED refugee status from a principal applicant.
Title 8, Code of Federal Regulations, part 207.7(d) states in pertinent part:
(d) Filing. A refugee may request accompanying or following-to-join benefits for his/her spouse and unmarried, minor child(ren) (whether the spouse and children are in or outside the United States) by filing a separate Form I-730 Refugee/Asylee Relative Petition, for each qualifying family member with the designated Service Office. The Form I-730 may only be filed by the principal refugee. Family members who derived their refugee status are not eligible to file the Form I-730 on behalf of their spouse and child(ren).....

Service records indicate that you were admitted to the United States as the derivative spouse or child of a refugee on October 31, 2000. You were not admitted to the United States as the principal applicant. Therefore, you are ineligible to file Form I-730, and this petition may not be approved.
In view of the above, this petition must be and hereby is denied.
This denial may not be appealed. However, if you believe that you can overcome the grounds for denial, you may submit a new petition with the appropriate documentation to this office.

Адвокат сказал, что он, якобы , очень удивлен. Он звонил какому-то офицеру INS в отставке и тот сказал, что все верно. Отказ законный......

Menia interesuet granice v 21 god. Kogda vy ee peresekli?

Kstati.

1. Visa-93 eto kak raz i est' poluchenia derivative statusa refugee. Cherez zapolnenia formy I-730.

2. Vam otkazali ne za to, chto vy pojenilis' posle poluchenia statusa bejenca. Vasha interpretacia otveta neverna. A za to, chto vy sami ne schitaetes' "principal refugee", a schitaetes' lish' "derivative refugee".

Soglasno http://www.hias.org/Immigration/Answers/other.html#O4

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Who is a "Derivative Refugee" ?
Q: "When I came to the U.S. with my husband's family a few years ago, my elderly father-in-law was considered to be the "principal" refugee. Does this mean that the rest of the family are derivative refugees who are not eligible to file an I-730 for a spouse or child?"

A: No, other members of the family may be principals. In August 1996, INS Headquarters clarified that a person who is classified by some overseas processing posts as a derivative refugee but who is neither the spouse nor the child (unmarried and under 21) of the principal applicant is considered to be "a principal" for the purpose of petitioning for a spouse or child to join him/her in the United States.

During Moscow refugee processing, many refugees were unfairly classified as "derivatives", only for the humanitarian purpose of keeping a large family together in one case. Thus, the overseas INS office would sometimes designate a grandfather as the "principal" of a large family that included his wife, an adult married son, and the three unmarried minor children of the son. Everyone except for the principal was designated as a derivative refugee. Under this arrangement, an adult married son, for example, could not petition for his wife to follow and join him in the United States. Under the revised policy, the son does meet the definition of a principal and may file a petition for his wife.

HIAS has a great deal of expertise in filing I-730 petitions for eligible spouses and children of U.S. refugees. We also prepare all of the required translations of documents. Please call our Appointment Desk at 212-613-1419, if you would like HIAS to assist you with this or any immigration application.

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Iz vysheizlojennogo sleduet, chto INS prosto oshiblos'. Kak vidite iz privedennoi citaty, takoe proishodit chasto.

Poskol'ku vy uje byli jenaty v moment v'ezda v USA, to daje esli vam escio ne bylo 21 goda v etot moment, vy vse ravno klassificirovalis' kak "principal refugee". I mojete oformliat' I-730 na jenu.

Chto delat' teper'?
U vas 2 puti.
1. Oformit' novuiu petition I-730. Esli s momenta v'ezda escio ne proshlo 2 let.
2. Oformit' motion to reopen.

Soglasno http://www.ins.gov/cgi-bin/folioisa.dll/lawbooks.nfo/query=principal+derivative+refugee/doc/{t13390}/words=4/hits_only?

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(g) Denials. If the spouse or child of a refugee is found to be ineligible for derivative status, a written notice explaining the basis for denial shall be forwarded to the principal refugee. There shall be no appeal from this decision. However, the denial shall be without prejudice to the consideration of a new petition or motion to reopen the refugee or asylee relative petition proceeding, if the refugee establishes eligibility for the accompanying or following-to-join benefits contained in this part.

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Voobcse sovetuiu obratit'sia v HIAS, potomu chto oni imeiut bol'shoi opyt raboty s podobnymi oshibkami INS.
Chto uznaete - napishite tut.

1. Да, но согласно этому:
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A: No, other members of the family may be principals. In August 1996, INS Headquarters clarified that a person who is classified by some overseas processing posts as a derivative refugee but who is neither the spouse nor the child (unmarried and under 21) of the principal applicant is considered to be "a principal" for the purpose of petitioning for a spouse or child to join him/her in the United States.
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на момент получения статуса я был unmarried child (under 21) of the principal applicant. Значит я не могу быть "a principal" for the purpose of petitioning for a spouse or child to join him/her in the United States ?
2. Я слышал, что HIAS занимается только "jewish-делами". Так ли это ? Поэтому я и не обращался к ним (моя жена - русская). Можете ли Вы посоветовать, куда конкретно обратиться в HIASе ? (Возможно, конкретного lawyera ?).
3. HIAS и NYANA - это не одно и то-же ? Я имею просто неудовлетворительний опыт работы с одним из адвокатов NYANA (не тот, которому я платил указанниу выше сумму).

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на момент получения статуса я был unmarried child (under 21) of the principal applicant. Значит я не могу быть "a principal" for the purpose of petitioning for a spouse or child to join him/her in the United States ?

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Net. Eto ne vajno. Data, kogda vy "derive" vash status, - eto data vashego v'ezda v USA.
Na etu datu vy byli jenaty (da i bolee 22). Poetomu vy - principal applicant s tochki zrenia zapolnenia I-730.

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2. Я слышал, что HIAS занимается только "jewish-делами". Так ли это ?

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Net, eto ne tak. Naprimer, soglasno statistike http://www.hias.org/Who_We_Are/arrival.html HIAS uspeshno prinimaet neevreiskih bejencev iz Irana i Kosovo.

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Поэтому я и не обращался к ним (моя жена - русская). Можете ли Вы посоветовать, куда конкретно обратиться в HIASе ? (Возможно, конкретного lawyera ?).

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3. HIAS и NYANA - это не одно и то-же ? Я имею просто неудовлетворительний опыт работы с одним из адвокатов NYANA (не тот, которому я платил указанниу выше сумму).

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Ia ne smog naiti reshenia o traktovke INS 1996 goda, na kotoroe ssylaetsia HIAS. Edinstvennyi istochnik, o kotorom ia znaiu, podtrverjdaiuscii chto INS oshiblos' - eto eta publikacia HIASa.

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В очень схожей ситуации моя I-730 была одобрена. Однако, ситуация отличалась тем, что хоть и не был главным заявителем (мне было <21 года на момент собеседования),я был единственным членов семьи, который въехал в США. Когда я звонил в Washington Processing Center (их телефон сейчас уже не доступен для публики), мне сказали, что если ты не подподаешь под стандартное определение Derivative Refugee (не приехал в физической компании с principal или в течении 1 года после этого), то ты principal для целей I-730.

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Esli vam bolee 21 goda ili vy jenaty na datu v'ezda v USA (a ne na datu interview ili inye daty), to s tochki zrenia podachi I-730 vy principal applicant.

....Пока в голове у меня винегрет..., но, похоже, благодаря вашим советам, у меня появился шанс. Очень надеюсь, что вы, г-н Raevsky, правы.

Постараюсь подвести итог: мой derivative статус стал действительним с того момента, как я въехал в USA. А так как при этом мне было более чем 21 год , то я могу быть "a principal" for the purpose of petitioning for my spouse or child to join me in the United States. Так ли это ? Если так, то интересно, считается ли INS с этими разъяснениями, которые дает HIAS по поводу derivative ? Вполне возможно , что это так и осталось на бумаге....

К тому же, мой бывший адвокат (как я уже говорил) советовался с "шишкой" из INS но тот никак его не обнадежил. Значит, скорее всего такие дела у них не проходят... (То, что этот lawyer - лапухнулся - это понятно, но то, что он советовался с человеком из INS - ето проверенный факт). Еще больше меня пугает то, что этого lawyera посоветовал родственник, у которого было очень сложное дело (гораздо сложнее, чем у меня) и lawyer его выиграл, но он не смог решить моеи проблемы, которая гораздо легче для него. Он и деньги не хочет отдавать потому, что ему "стыдно", что он "проиграл". Такие проколы у него - редкось...

V HIASe nado naiti ssylku na iznachal'noe reshenie INS.
Pokazav ee (a ne perefrazirovku ee v HIASe) chinovniku iz INS, mogno oformit' motion to reopen na reshenie INS vo vashemu delu. HIAS vam togda bol'she ne nujen.

HIAS utverjdaet, chto u nih bol'shoi opyt vedenia del, kogda INS oshibaetsia pri podobnyh obstoiatel'stvah. Tak chto eto vopros k nim, a ne ko mne.

Novuiu I-730 poka ne podavaite, poka libo ne vyiasnite ishodnuiu ssylku na reshenie INS, libo ne voz'mete v HIASe lawyera, kotoryi imel delo s podobnymi sluchaiami.
Kto-to je napisal v HIASe eti stroki.

http://www.ins.gov/graphics/howdoi/derref.htm

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If your child is outside the United States and has been approved for derivative refugee status, your child will be able to come to the United States as a refugee at any time as long as they are under 21, unmarried, and maintain their relationship with you. If your spouse is outside the United States and has been approved for derivative refugee status, your spouse will be able to come to the United States as a refugee at any time as long as your spouse remains married to you.

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Teper' pro vashu jenu. Vy imeli statrus principal refugee na datu v'ezda.

Tam je

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You may apply for derivative refugee benefits for your spouse or unmarried child under the age of 21 within two years of your admission to the United States as a principal refugee or by February 28, 2000, whichever is later...
The relationship between you and your spouse and your child must have existed when you were admitted as a refugee and must continue to exist when you file INS Form I-730 (Refugee/Asylee Relative Petition) and when your spouse or child is admitted to the United States.

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Я позвонил в HIAS, оставил message об appointmentе. Женщина перезвонила, спросила о моем деле, о возрастах въезда, получения статуса и т.д. Я описал ситуацию, сослался на сайт HIAS, где они утверждают, что успешно решают подобные ситуации. Она сказала, что они вряд ли смогут мне помочь, т.к. я, якобы, не отправлял первую I-730 через HIAS. Сказала, что посоветуется и перезвонит мне. Перезвонила. И оставила message о том, что они не смогут мне помочь, что мне надо ждать Green Card и т. д ...

Можно, конечно, предположить, что она просто облегчила себе работу, ни у кого ничего не спрашивая. Но, скорее всего, HIAS в Internet и HIAS в жизни - это протовоположные вещи и их самореклама на web-site не соответствует действительности......

Parallel'no (daje esli vy ne znaete ssylki na samo reshenie INS) mojno napisat' vashemu kongresspersonu. No luchshe vse je znat' na chto proishodit ssylka.

A kakoi datoi datirovan vash otkaz?

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Admitted
A coming into the US after inspection and authorization by a US immigration official and, the act of being allowed to pass into the US after inspection at a port. (A person who comes into the US illegally without being inspected makes an entry without inspection called an EWI.) Admission is shown by a stamp with the word "Admitted" placed in the passport and on a Form I-94 Entry Card (stapled into the passport) at the port inspection point.

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Ia vam koe-chto escio nashel. Oficial'noe raz'iasnenie INS, pravda ot 1998 goda. No on ssylaetsia na 61 FR 35984 ot July 9, 1996

[http://groups.google.com/groups?selm=63FR3792%40us.govnews.org&output=gplain]http://groups.google.com/groups?selm=63FR3792%40us.govnews.org&output=gplain[/URL]
a takje http://www.immigrationlinks.com/news/news186.htm (odin i tot je tekst)

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Only the Principal Refugee May File a Form I-730

Similar to current regulations, the proposed rule required that the
Form I-730 be filed by the principal refugee. Individuals who have
derived their refugee status from the principal refugee are not
eligible to file a Form I-730.
Ten commenters opposed the Service's requirement that only the
principal refugee may file the Form I-730. Four commenters claimed
that, because of the refugee registration systems used overseas,
certain refugees may be inadvertently labeled as a derivative when he/
she does not fit the definition of a derivative spouse or child and, in
fact, should be considered a principal for the purposes of filing the
Form I-730. Two commenters argued that any refugee who does not meet
the statutory definition of a ``derivative'' should be allowed to file
the Form I-730. Several commenters stated that if the purpose of the
principal applicant rule is to deter fraud, then it is overbroad and,
as such, violates the intent and language of the Act. One commenter
expressed the need for a humanitarian exception in the case where the
principal refugee is deceased or incapacitated, becomes abusive, or
abandons his/her family after the derivative spouse has reached the
United States, in order to allow the derivative spouse to petition for
their mutual child(ren). Another commenter stated that the regulation
should allow for the child of an unmarried parent to accompany or
follow-to-join him/her even if the parent had obtained his/her refugee
status on a derivative basis.
The Service has carefully considered their comments and has
reviewed the language of the Act at sections 207 (c)(1) and (c)(2). The
requirement that only the principal refugee may file for accompanying
of following-to-join benefits for his/her spouse and/or child(ren) may
be ascertained from the language of sections 207 (c)(1) and (c)(2) of
the Act. Section 207(c)(2) provides for the admission of spouses and
children (as defined in section 101(b)(1) (A), (B), (C), (D), or (E) of
the Act) of a refugee qualifying for admission under section 207(c)(1)
of the Act. Accordingly, only a principal refugee, admitted under
section 207(c)(1) of the Act, may file a Form I-730 on behalf of his or
her spouse or child(ren). The Service already regards persons admitted
under section 207 who do not meet the statutory definition of a spouse
or child to be principals for the purpose of filing an I-730 petition.
Eight commenters stated that the proposed rule was confusing in its
use of the terms ``principal refugee,'' ``principal applicant,'' and
``principal alien.'' The Service agrees with these comments and has
removed the term ``principal applicant'' from the final rule in order
to avoid any confusion.

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Teper' vse stalo na svoi mesta. Opredelenie derivative refugee est' na saite INS. Ia ego privel v poste ot 12 October 2001 01:31

Vy pod nego ne prohodite. Vo vremia prohojdenia INS v Moskve vam oficer INS oshibochno "derivative". A oficer na v'ezde v USA ne isptavil oshibochno (vam je uje bylo 21 god i vy byli jenaty. On doljne byl ispravit', no ne ispravil.

Ob etom kak raz i govorit vydelennyi moment.

Samo 61 FR 35984 est' zdes':

http://www.immlawyers.com/Library/INSDOCS/Fedreg/FEDREG96.html

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Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and Unmarried Children of a Refugee/Asylee [61 FR 35984] [FR 29-96]

DOCUMENT NUMBER: FR 29-96

FEDERAL REGISTER CITE: 61 FR 35984

DATE PUBLISHED: July 9, 1996

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 207 and 208

[INS No. 1639-93]

RIN 1115-AD59

Procedures for Filing a Derivative Petition (Form I-730) for a

Spouse and Unmarried Children of a Refugee/Asylee

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend the Immigration and Naturalization Service (Service) regulations by providing procedures which must be followed by a refugee to bring his/her spouse and unmarried, minor child(ren) (derivatives) into the United States. This proposed rule is intended to respond to the family reunification needs of refugees by establishing an equitable and consistent following-to-join policy for refugees which parallels the current following-to-join procedures for asylees. This rule also proposes to amend asylum regulations by removing from the definition of qualifying relationship child(ren) born to or legally adopted by the principal alien and spouse after approval of the principal alien's asylum application.

DATES: Written comments must be submitted on or before September 9, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536, Attention: Public Comment Clerk. To ensure proper handling, please reference INS No. 1639-93 on your correspondence. Comments will be available for public inspection at this location by calling (202) 514-3048 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT: Ramonia Law-Hill, Senior Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

A. Background

The United States refugee program places strong emphasis on family reunification and assigns priority for interviews to those refugee applicants who have immediate family members already in the United States. This emphasis on reunifying families also extends to those refugees who have been resettled in the United States, but who remain separated from their spouse and/or child(ren). In such cases, refugees may file to have their spouse and/or child(ren) "follow-to-join" them in the United States. The following-to-join provisions for refugees is found in section 207(c)(2) of the Immigration and Nationality Act (Act).

To apply for such benefits, refugees file Form I-730, Refugee/Asylee Relative Petition, with the designated Service office. Such designation will be through separate action in the Federal Register. Spouses and unmarried, minor children (derivatives) who follow-to-join a refugee already in this country are admitted as refugees.

B. Need for Procedural Review and Revised Regulation

Over the past year, it has become apparent that existing Service procedures regarding following-to-join benefits for refugees is inadequate and has resulted in confusion for the general public. Regulations are necessary to clarify procedures and to establish an equitable and consistent following-to-join policy for refugees which parallels that found in the current following-to-join regulations for asylees, who are also eligible to file Form I-730.

In recent months the Service has received numerous telephone inquiries from members of Congress, the general public, voluntary agencies, and attorneys representing clients concerning the application of the following-to-join provisions found in section 207(c)(2) of the Act. Of primary concern has been the Service's requirement that the refugee's relationship to the spouse and/or child predates the date on which the refugee was granted refugee status. A Service memorandum issued on January 8, 1987, defined this date as the date of tentative approval, which has been interpreted by some as being the day of the refugee's interview. That interpretation, however, has not received Servicewide acceptance.

The Service's recent initiative to combine the Form I-730 with the revised Form I-130 (Petition for Alien Relative), revealed differing practices for processing following-to-join petitions filed by refugees and those filed by aslyees. It was, therefore, determined that rather than consolidate the forms, the Service needed to review and, if necessary, revise existing policies relating to refugees and asylees.

C. Following-to-Join Issue

In the absence of a time limit on the following-to-join regulations, individuals who entered the United States as conditional entrants in the late 1970s and refugees in the early 1980s are filing Form I-730 petitions for a spouse and/or child(ren). Following-to-join benefits are available to help refugees make the difficult transition to a new life with the support of their immediate family members. Forms I-730 filed ten or more years after admission no longer serve the purpose for which they were originally intended. Instead, they deplete limited refugee admission numbers and refugee resettlement monies needed for emerging refugee populations. The proposed regulations are intended to respond more fully to the family reunification needs of refugees, while establishing specific guidelines on the following-to-join process.

Current interpretations of the following-to-join benefits for refugees have created confusion for Service officers, attorneys, refugees, and the general public. While some interpret following-to-join eligibility based on the refugee's date of admission, current practice requires the relationship to exist prior to the tentative approval date of the principal's application for refugee status. The Service determined that the current interpretation of following-to-join for refugees is too restrictive since it requires a refugee to meet a heavier burden for establishing a relationship with his/her spouse and unmarried, minor child(ren), than is required by regulation for a spouse and unmarried minor child(ren) of a citizen or lawful permanent resident of the United States. To resolve this disparity, the Service is adopting a more generous interpretation of the point at which a qualifying relationship exists for following-to-join benefits. This rule proposes that the refugee's date of admission be used to determine following-to-join eligibility. A refugee will then be able to file a separate Form I-730 for his/her spouse and/or each individual child if the relationship predates the refugee's date of admission to the United States, rather than the date of interview. The Service believes this proposal reflects the intent of Congress to reunite refugees with their families. Further, it alleviates inconsistencies in determining eligibility as is currently encountered because of the difficulty in determining the date of tentative approval.

Additionally, the Service has found that the benefit accorded asylees regarding children is too broad in that current asylum regulations extend following-to-join benefits to children born to, or adopted by, asylees at any point after the date of their approval. As a result, this rule will amend existing asylum regulations by requiring that, for purposes of filing a Form I-730, the asylee's relationship to a child exists on the date the asylee is granted asylum.

Only refugees who entered the United States as principal aliens will be eligible to file the Form I-730 for following-to-join benefits for a spouse and/or each individual unmarried, minor child under this proposed rule. Those individuals who have derived their refugee status from the principal alien will not be eligible to file Form I-730.

Past practice has allowed for the adjudication of Form I-730 filed by a son or daughter who claimed to be single in order to qualify as a member of a parent's refugee case, and who then petitioned for his/her spouse after arrival to the United States. As the proposed rule does not permit the filing of a Form I-730 by derivatives, this type of misrepresentation should be reduced. Only the spouse and unmarried, minor child(ren) of a refugee may benefit under the proposed following-to-join regulation.

Currently there is no established time to file for and receive following-to-join benefits, either for asylees or refugees. The proposed regulation will impose a 1-year time limit from the date of the principal's admission, within which a refugee or asylee must file a separate Form I-730 for each individual qualifying family member, unless it is clearly established that compelling circumstances preclude the timely filing of the application. Refugees or asylees who have resided in the United States for more than 1 year when this regulation becomes effective will be granted 1 year from the effective date of the final regulation in which to file Form I-730 for following-to-join benefits for their spouse and unmarried, minor child(ren). The Service may, however, waive the 1-year limit when it is determined that humanitarian reasons for extending the filing period exist. The 1-year limit refers only to the filing of the Form I-730. Such limit is not imposed on family members' travel to the United States, as the Service is aware of the impediments which may delay family members' travel for years following the refugee's arrival in the United States. The filing of the Form I-730 will serve to notify the Service of a refugee's or asylee's intent to have his/her spouse and/or child(ren) join him/her in the United States. The approval of the Form I-730 shall remain valid for the duration of the relationship to the refugee or asylee, and in the case of a child, while the child is under 21 years of age and unmarried, provided also that the principal's status has not been revoked.

The Service has established what it believes to be a reasonable time limit on the filing of the Form I-730. It is further believed that derivative benefits for spouses and children of refugees was intended for the purpose of reuniting families and to avoid lengthy delays due to visa quotas. Timely filings will expedite the reunification of refugee families and ensure the removal of spouses and children of refugees from a country subjecting them to persecution on the basis of that relationship. Thus, refugees must file following-to-join petitions within 1 year of the date of their admissions; asylees within 1 year of being granted asylum status.

While the rule proposes necessary bounds, such as adding eligibility requirements and establishing a filing period for following-to-join benefits, it is liberal in defining the point at which a qualifying relationship exists for this benefit. The proposed rule will clarify the Service's following-to-join policy for Service officers and the general public by standardizing refugee and asylee following-to-join procedures.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities because it is administrative in nature and merely imposes specific regulatory restraints, which parallel procedures currently found in asylum regulations.

Executive Order 12866

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget and waived its review process under section 6(a)(3)(A).

Executive Order 12612

The regulations proposed herein will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Commissioner of the Immigration and Naturalization Service certifies that she has assessed this rule in light of the criteria in Executive Order 12606 and has determined that this regulation will enhance family well-being by establishing an equitable and consistent following-to-join policy for refugees which parallels the current following-to-join policy for asylees.

Paperwork Reduction Act

The information collection requirement (Form I-730) contained in this rule is being revised by the Immigration and Naturalization Service. In accordance with the Paperwork Reduction Act, the Service published a notice in the Federal Register on May 3, 1996, at 61 FR 19958, notifying the public of the revision to the Form I-730.

List of Subjects

8 CFR Part 207

Immigration, Refugees, Reporting and recordkeeping requirements.

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

PART 207--ADMISSION OF REFUGEES

1. The authority citation for part 207 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1157, 1159; 8 CFR Part 2.

§ 207.1 [Amended]

2. Section 207.1 is amended by removing paragraph (e).

§§ 207.7 and 207.8 [Redesignated as § 207.8 and § 207.9]

3. Sections 207.7 and 207.8 are redesignated as § 207.8 and 207.9 respectively.

4. A new § 207.7 is added to read as follows:

§ 207.7 Derivatives of refugees.

(a) Eligibility. A spouse, as defined in section 101(a)(35) of the Act, and/or child(ren), as defined in section 101(b)(1)(A), (B), (C), (D), or (E) of the Act, may be granted refugee status if accompanying or following-to-join the principal alien. An accompanying derivative is a spouse or child of a refugee who is in the physical company of the principal refugee when he or she is admitted to the United States, or a spouse or child of a refugee who is admitted within 4 months of the principal refugee's admission. A following-to-join derivative, on the other hand, is a spouse or child of a refugee who seeks admission more than 4 months after the principal refugee's admission to the United States.

(b) Ineligibility. The following relatives of refugees are ineligible for accompanying or following-to-join benefits:

(1) A spouse or child who has previously been granted asylee or refugee status;

(2) An adopted child, if the adoption took place after the child became 16 years old, or if the child has not been in the legal custody and living with the parent(s) for at least 2 years;

(3) A stepchild, if the marriage that created this relationship took place after the child became 18 years old;

(4) A husband or wife if each/both were not physically present at the marriage ceremony, and the marriage was not consummated;

(5) A husband or wife if the U.S. Attorney General has determined that such alien has attempted or conspired to enter into a marriage for the purpose of evading immigration laws;

(6) A parent, sister, brother, grandparent, grandchild, nephew, niece, uncle, aunt, cousin or in-law.

(c) Relationship. The relationship of a spouse and child as defined in sections 101(a)(35) and 101(b)(1)(A), (B), (C), (D), or (E), respectively, of the Act, must have existed prior to the refugee's admission to the United States and must continue to exist at the time of filing for following-to-join benefits and admission to the United States. If the refugee proves that the refugee is the parent of a child who was born after the refugee's admission as a refugee, but who was in utero on the date of the refugee's admission as a refugee, the child shall be eligible to follow-to-join the refugee. The child's mother, if not the principal refugee shall not be eligible to follow-to-join the principal refugee unless the child's mother was the principal refugee's spouse on the date of the principal refugee's admission as a refugee.

(d) Filing. A refugee may request following-to-join benefits for his/her spouse and unmarried, minor child(ren) (whether the spouse and children are in or outside the United States) by filing a separate Form I-730, Refugee/Asylee Relative Petition, for each qualifying family member with the designated Service office. Persons who derive their refugee status from the principal applicant are not eligible to file Form I-730. The Form I-730 may only be filed by the principal applicant. Family members, such as unmarried sons and daughters who derived their refugee status, are not eligible to file the Form I-730 on behalf of their spouse and child(ren). A separate Form I-730 must be filed for each qualifying family member within 1 year of the refugee's admission to the United States, unless the Service determines that the filing period should be extended for humanitarian reasons. There is, however, no time limit imposed on family members' travel to the United States once the Form I-730 for following-to-join benefits has been approved, provided approval of the Form I-730 petition has not been subsequently revoked. There is no fee for filing this petition.

(e) Evidence. Documentary evidence consists of those documents which establish that the petitioner is a refugee, and evidence of the claimed relationship of the petitioner to the beneficiary. The burden of proof is on the petitioner to establish by a preponderance of the evidence that any person on whose behalf he/she is making a request under this section is an eligible spouse or unmarried, minor child. Evidence to establish the claimed relationship for a spouse or unmarried, minor child as set forth in 8 CFR part 204 must be submitted with the request for following-to-join benefits. Where possible this will consist of the documents specified in § 204.2(a)(1)(i)(B), (a)(1)(iii)(E), (a)(2), (d)(2), and (d)(5) of this chapter. In addition, a recent photograph of each derivative must accompany the Form I-730. Although the photograph need not meet Alien Documentation Identification and Telecommunication System (ADIT) specifications, it must clearly identify the derivative. The photograph will be made part of the derivative's immigration record for identification purposes.

(f) Approvals. (1) Spouse or child in the United States. When a spouse or child of a refugee is in the United States and the Form I-730 is approved, the Service will notify the refugee of such approval on Form I-797, Notice of Action. Employment will be authorized incident to status.

(2) Spouse or child outside the United States. When a spouse or child of a refugee is outside the United States and the Form I-730 is approved, the Service will notify the refugee of such approval on Form I-797. The approved Form I-730 will be sent by the Service to the Department of State for forwarding to the American Embassy or Consulate having jurisdiction over the area in which the refugee's spouse or child is located.

(3) Benefits. The approval of the Form I-730 shall remain valid for the duration of the relationship to the refugee and, in the case of a child, while the child is under 21 years of age and unmarried, provided also that the principal's status has not been revoked. However, the approved Form I-730 will cease to confer immigration benefits after it has been used by the beneficiary for admission to the United States as a derivative of a refugee. To demonstrate employment authorization, the Service will issue a Form I-94, Arrival-Departure Record, which also reflects the derivative's current status as a refugee, or the derivative may apply under § 274a.12(a) of this chapter, using Form I-765, Application for Employment Authorization, and a copy of the Form I-797.

(g) Denials. If the spouse or child of a refugee is found to be ineligible for derivative status, a written notice explaining the basis for denial shall be forwarded to the refugee. There shall be no appeal from this decision. However, the denial shall be without prejudice to the consideration of a new petition or motion to reopen the refugee and asylee relative petition proceedings, if the refugee establishes eligibility for the following-to-join benefits contained in this part.

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF DEPORTATION

5. The authority citation for part 208 continues to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 31 U.S.C. 9701; 8 CFR part 2.

6. In § 208.21, paragraphs (b), (c), (d), and (f) are revised to read as follows:

§ 208.21 Admission of asylee's spouse and children.

* * * * *

(b) Relationship. The relationship of spouse and child as defined in sections 101(a)(35) and 101(b)(1) of the Act must have existed at the time the principal alien's asylum application was approved. If the asylee proves that the asylee is the parent of a child who was born after asylum was granted, but who was in utero on the date of the asylum grant, the child shall be eligible to follow-to-join the asylee. The child's mother, if not the principal asylee, shall not be eligible to follow-to-join the principal asylee unless the child's mother was the principal asylee's spouse on the date of the principal asylee's grant as an asylee.

(c) Spouse or child in the United States. When a spouse or child of an alien granted asylum is in the United States, but was not included in the asylee's application, the asylee may request following-to-join benefits for his/her spouse or child by filing for each qualifying family member a separate Form I-730, Refugee/Asylee Relative Petition, and supporting evidence, with the designated Service office, regardless of the status of that spouse or child in the United States. The Form I-730 must also be accompanied by a recent, clear non-ADIT style photograph for each derivative. The photograph will be used for identification purposes and will be placed in the derivative's immigration record. Additionally, a separate Form I-730 must be filed by the asylee for each qualifying family member within 1 year of the date in which he/she was granted asylum status, unless it is determined by the Service that this period should be extended for humanitarian reasons. Upon approval of the Form I-730, the Service will notify the asylee of such approval on Form I-797 "Notice of Action." Employment will be authorized incident to status. To demonstrate employment authorization, the Service will issue a Form I-94, Arrival-Departure Record, which also reflects the derivative's current status as an asylee, or the derivative may apply under § 274a.12(a) of this chapter, using Form I-765, Application for Employment Authorization, and a copy of the Form I-797. The approval of the Form I-730 shall remain valid for the duration of the relationship to the asylee and, in the case of a child, while the child is under 21 years of age and unmarried, provided also that the principal's status has not been revoked. However, the approved Form I-730 will cease to confer immigration benefits after it has been used by the beneficiary for admission to the United States as a derivative of an asylee.

(d) Spouse or child outside the United States. When a spouse or child of an alien granted asylum is outside the United States, the asylee may request following-to-join benefits for his/her spouse or child(ren) by filing a separate Form I-730 for each qualifying family member with the designated Service office, setting forth the full name, relationship, date and place of birth, and current location of each such person. The Form I-730 must be accompanied by a recent, clear non-ADIT style photograph for each derivative. A separate Form I-730 for each qualifying family member must be filed within 1 year of the date in which the asylee was granted asylum status, unless the Service determines that the filing period should be extended for humanitarian reasons. When the Form I-730 is approved, the Service will notify the asylee of such approval on Form I-797. The approved Form I-730 shall be forwarded by the Service to Department of State for delivery to the American Embassy or Consulate having jurisdiction over the area in which the asylee's spouse or child is located. The approval of the Form I-730 shall remain valid for the duration of the relationship to the asylee and, in the case of a child, while the child is under 21 years of age and unmarried, provided also that the principal's status has not been revoked. However, the approved Form I-730 will cease to confer immigration benefits after it has been used by the beneificary for admission to the United States as a derivative of an asylee.

* * * * *

(f) Burden of proof. To establish the claimed relationship of spouse or child as defined in sections 101(a)(35) and 101(b)(1) of the Act, evidence must be submitted with the request as set forth in part 204 of this chapter. Where possible this will consist of the documents specified in § 204.2(a)(1)(i)(B), (a)(1)(iii)(E), (a)(2), (d)(2) and (d)(5) of this chapter. The burden of proof is on the principal alien to establish by a preponderance of the evidence that any person on whose behalf he or she is making a request under this section is an eligible spouse or child.

* * * * *

May 7, 1996 Signed

_________________ _____________________________

Dated: Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

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Zdes' ia vydelil opredelenie derivative.
Tam chetko skazano child, a v moment v'ezda vy ne iavlialis' child, t.k. byli jenaty i vam bylo bolee 21 goda.

Stalo byt', vam ne nujno bol'she obrascat'sia v HIAS. U vas est' vse dokumenty: 61 FR 35984 ot 9 iulia 1996, a takje

quote:

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Archive-Name: gov/us/fed/nara/fed-register/1998/jan/27/63FR3792
Posting-number: Volume 63, Issue 17, Page 3792

[Federal Register: January 27, 1998 (Volume 63, Number 17)]
[Rules and Regulations]
[Page 3792-3803]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ja98-2]

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Iz dokumentov odnoznachno sleduet, chto vy ne podhodite pod opredelenie derivative refugee, odnako oshibochno byli vo vremia admission kvalificirovany kak derivative refugee, v to vremia kak vy na samom dele iavliaetes' principal s tochki zrenia filinga I-730.

Vy mojete spokoino otsylat' motion to reopen v INS (esli ne vyshel srok), a takje opisat' situaciu vashemu kongresspersonu.

Opredelenie "child":

http://www.foia.state.gov/masterdocs/09fam/0940001N.pdf

quote:

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9 FAM 40.1 N2 Child Defined
(TL:VISA-307; 08-20-2001)
The term “child” refers to an unmarried person under 21 years of age.
This note addresses the many categories of the term “child” under the provisions
of INA 101(b)(1) with the exception of 101(b)(1)(G).

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Smotrite http://www.ins.gov/graphics/howdoi/repealdenial.htm

quote:

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A motion to reconsider must establish that the decision was based on an incorrect application of law or INS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made.

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Zafailit' ego nado v techenie 30 dnei posle oshibochnogo vynesennogo reshenia. Tam je

quote:

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Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision.

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Esli vy sami ne v sostoianii ee oformit', oformliaite cherez HIAS.

Chtoby opredelit' vashego representative, nado znat' bolee podrobnuiu informaciu - libo vash adres, libo vash 9-znechnyi zip cod, t.k. 11203 soderjit neskol'ko variantov dlia representative.
Smotrite http://www.house.gov/house/MemberWWW.html

Prilojit' dokumenty stoit, i stoit skazat', chto vy ne oformliaete "motion to reconsider" potomu chto prevysli 30 dnei.

napishite na otdel'nom liste, chto vy principal refugee, t.k. ne sootvetstvuuete kriteriu dlia derivative refugee - v moment vashego admission vy byli jenaty i vam bylo boolee 21 goda.

Napishite, chto na vashei I-94 i v shtampe v vashem pasporte na immigracionnom kontrole pri v'ezde rabotnik INS napisal vam status "child of a refugee" (RE8), soglasno tomu, chto vo vremia overseas rassmotrenia vam napisal oficer INS posle interview v Moskve, kogda vy deistvitel'no byli escio "child" v svete opredelenia rebenka dlia immigracionnyh celei.

Chto dlia celei I-730 vy iavliaetes' RE6, a ne RE8, poskol'ku ne vpisyvalis' v to, chto nazyvaetsia "child", v moment vashego v'ezda (hotia i byli "child" v moment prohojdenia interview v INS v Moskve). I chto ne vasha vina, chto immigracionnyi rabotnik na 'ezde pri vashem admission oshibsia, a potom oshibsia adjudicator, otkazav vam v I-730 na osnovanii, chto vy RE8, a ne RE6.

"This denial may not be appealed. However, if you believe that you can overcome the grounds for denial, you may submit a new petition with the appropriate documentation to this officе. " ?

Znachitel'nye - eto reshenie INS ot 9 iulia 1996 goda i pis'mo INS ot 27 ianvaria 1998 goda. Kak i opredelenie togo, kto iavliaetsia rebenkom dlia celei immigracii.

quote:

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Originally posted by Pianist:
Хорошо. Но все-таки: если я имел право отправить motion to reconsider, то почему в отказе не была упомянута эта возможность ? А было сказано:

"This denial may not be appealed. However, if you believe that you can overcome the grounds for denial, you may submit a new petition with the appropriate documentation to this officе. " ?

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Potomu chto tak trebuet zakon. Vot chto on govorit:

quote:

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Finally, petitioners should note that although there is no appeal
from the denial of a petition filed on Form I-730, the denial shall be
without prejudice to the consideration of a new petition or motion to
reopen the refugee or asylee relative petition proceeding, if the
petitioner establishes eligibility for accompanying or following-to-
join benefits. This is consistent with other types of applications for
immigration benefits where no administrative appeal is available, but
the applicant may submit a new application or a motion to reopen in the
case of a denial (e.g., 8 CFR 204.2(a)(1)(iii)(D)).

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Appeal nel'zia delat' v sleduiuscem smysle http://www.ins.gov/graphics/howdoi/repealdenial.htm :

quote:

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In addition to the right to appeal (in which you ask a higher authority to review a denial), you may file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision.

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quote:

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Znachitel'nye - eto reshenie INS ot 9 iulia 1996 goda i pis'mo INS ot 27 ianvaria 1998 goda. Kak i opredelenie togo, kto iavliaetsia rebenkom dlia celei immigracii.

То есть надо приложить ссилку на http://www.immigrationlinks.com/news/news186.htm
и далее - сам текст оттуда. Так ?

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quote:

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Я хотел убедиться, могу ли я вообще ссылаться на эти сайти:
http://www.immigrationlinks.com/
http://groups.google.com
http://www.lawcom.com/
http://www.foia.state.gov/ ?

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Opredelenie rebenka (zakon, a ne ego oficial'naia interpretacia gosdepartamentom, kotoraia est' na www.foia.state.gov) est' zdes':
http://www.ins.gov/lpBin/lpext.dll/inserts/slb/slb-15/slb-44 3/slb-445?f=templates&fn=document-frame.htm#slb-act101 i http://www.ins.gov/lpBin/lpext.dll/inserts/slb/slb-15/slb-443/slb-7 60?f=templates&fn=document-frame.htm&2.0

quote:

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(b) As used in titles I and II-

(1) The term "child" means an unmarried person under twenty-one years of age who is-

(A) a child born in wedlock;

(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;

(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;
(D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;

(E) (i) 17a/ a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or

(ii) 17a/ subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child was adopted while under the age of 18 years; 17aa/

(F) (i) 17a/ a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 201(b), who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence: Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or

(ii) 17a/ subject to the same provisos as in clause (i), a child who: (I) is a natural sibling of a child described in clause(i) or subparagraph (E)(i); (II) has been adopted abroad, or is coming to the United States for adoption, by the adoptive parent (or prospective adoptive parent) or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child is under the age of 18 at the time a petition is filed in his or her behalf to accord a classification as an immediate relative under section 201(b); or 17aa/ .

(G) 17aa/ a child, under the age of sixteen at the time a petition is filed on the child's behalf to accord a classification as an immediate relative under section 201(b), who has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done at The Hague on May 29, 1993, or who is emigrating from such a foreign state to be adopted in the United States, by a United States citizen and spouse jointly, or by an unmarried United States citizen at least 25 years of age--

(i) if--

(I) the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States;

(II) the child's natural parents (or parent, in the case of a child who has one sole or surviving parent because of the death or disappearance of, abandonment or desertion by, the other parent), or other persons or institutions that retain legal custody of the child, have freely given their written irrevocable consent to the termination of their legal relationship with the child, and to the child's emigration and adoption;

(III) in the case of a child having two living natural parents, the natural parents are incapable of providing proper care for the child;

(IV) the Attorney General is satisfied that the purpose of the adoption is to form a bona fide parent-child relationship, and the parent-child relationship of the child and the natural parents has been terminated (and in carrying out both obligations under this subclause the Attorney General may consider whether there is a petition pending to confer immigrant status on one or both of such natural parents); and

(V) in the case of a child who has not been adopted--

(aa) the competent authority of the foreign state has approved the child's emigration to the United States for the purpose of adoption by the prospective adoptive parent or parents; and

(bb) the prospective adoptive parent or parents has or have complied with any pre-adoption requirements of the child's proposed residence; and

(ii) except that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

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[This message has been edited by raevsky (edited 18 October 2001).]

Однако она добавила, что если мой адвокат пришлет в HIAS документы о том, что он передает им мое дело, то они, конечно же попробуют отправить повторную petition... (наскол'ко я понял, почти бесплатно).

Esli HIAS boitsia - eto znachit, chto u nih bol'she net togo advokata, kotoryi napisal te stroki. I kotoryi znal, chto delat' v takih sluchaiah. A nyneshnii - ne znaet. Vot i vse.

Ia dumaiu, chto INS nepredzviato. V voprosah priznania svoei viny. Krome togo, esli ih vina budet priznana sudom, da escio i v sovershenno ochevidnoi sitiacii, a ne v slijnom iuridicheskom voprose, to dlia nih eto budet kuda nepriatnee, chem esli oni sami priznaiut svoiu vizu v hode vnutrennego rassmotrenia. Boius', chto togda im pridetsia uvolit' vinovnogo v nejelanii priznat' svoiu vinu. Odno delo - oshibka, drugoe - namerennoe uklonenie ot zakona, bukva kotorogo ne dopuskaet raznochtenii.

Vam sleduet poslat' novuiu peticiu I-730. Esli snova ne proidet - motion to reconcider. Esli snova ne proidet - sudit' INS v sude. Porajenie INS v sude neizbejno Opravdania ih deistviam pridumat' nel'zia), i oni popytaiutsi aegio izbejat' na rannih etapah.

>Esli HIAS boitsia - eto znachit, chto u nih bol'she net togo advokata, kotoryi napisal te stroki. I kotoryi znal, chto delat' v takih sluchaiah. A nyneshnii - ne znaet. Vot i vse.

Да, но выходит, что тогда в Москве статус derivative мне был присвоен верно: я был не женат и до 21 года. Значит "преимущества" HIASа сейчас не актуальны ..?

Takih zakonov net. Vas poprosili eto sdelat' ne potomu, chto s vas zakon eto trebuet, a dlia oblegchenia raboty INS - dlia umen'shenia veroiatnosti oshibki. Vy etogo ne sdelali, i INS oshiblos'.

Vy nichego ne sdelali takogo, za chto vas mojno bylo by deportirovat'.

INS ujestochaet ne zakony (zakony ostaiutsia prejnimi), a staraetsia ih luchshe sobliudat'.

Esli HIAS boitsia - eto znachit, chto u nih bol'she net togo advokata, kotoryi napisal te stroki. I kotoryi znal, chto delat' v takih sluchaiah. A nyneshnii - ne znaet. Vot i vse.

Da, verno. No status dlia celei I-730 prisvaivaetsia ne na interview, a v moment v'ezda. K etomu vremeni vy stali jenatym i dostigli vozrasta 21 goda. Poetomu vash status v moment v'ezda byl drugim. A oficer INS etogo ne zametil.

Soglasites', vy ne obiazany nikogo uvedomliat', chto dostigli vozrasta 21 god. Eto - obiazannost' oficera na granice zametit' eto.

Uje na odnom etom osnovanii (esli daje zabyt' pro jenit'bu, o kotoroi vy im ne skazali) vy byli principal refugee, a ne derivative.

Esli v HIASe bol'she net advokata, to ne aktual'ny. Delaite sami.