Derivative Asylum and Applying For A Green Card
If you received your asylum status based on your spouse’s sucessful asylum application, your asylum status is likely what is known as “derivative asylum.” If you have received derivative asylum you may be able to apply for permanent resident status and your green card one year after receiving your asylum status (assuming that you meet all of the other requirements for becoming a permanent resident). But can you still apply for a green card if you divorce your spouse before you apply for your green card?
In general, a person who receives derivative asylum must continue to meet the definition of spouse in order to be able to apply for a green card based on their asylum status. But if you get divorced, you will no longer meet the definition of spouse. As a result, you’ll probably have to follow some additional steps in order to become a permanent resident.
Nunc Pro Tunc Asylum
In many cases, derivative asylees who divorce and find themselves in this position must first file a new Form I-589 with their local Asylum Office before applying for a green card.
The Asylum Office will then schedule an interview. The interview will be used to verify the person’s identity and verify he or she is physically present in the United States. The Asylum Office will also be used to verify that the person is not in removal or deportation proceedings and is not subject to any mandatory bars to being granted asylum.
In general, the derivative asylee does not need to independently establish eligibility for asylum. But, the Asylum Office may interview the derivative asylee on the merits of the asylum claim in certain circumstances exist such as:
- The derivative asylee is a national of a different country than the principal asylee and does not appear to have a fear of harm in that country.
- The derivative asylee never lived with the principal asylee.
- It appears that the principal asylee derived asylum through fraud.
After the interview the Asylum Office may grant asylum to the derivative asylee what is referred to as nunc pro tunc asylum. Nunc pro tunc asylum basically gives the derivative asylee asylum status in their own right that is no longer based on their ex-spouse’s asylum. It will generally be backdated to the date that their ex-spouse received asylum or the date of the derivative asylee’s entry into the United States.
The issues surrounding divorce and being able to obtain a green card after receiving derivative asylum can be very complex. You should not apply for nunc pro tunc asylum if you have not consulted an immigration attorney and are confident that you understand the procedure, as well as all of the risks involved. For example, if you are deportable, your nunc pro tunc asylum application may result in deportation proceedings.