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.
About Kimberley Schaefer
I am facing honor killing threat from my husband, he is a tribal chief and politician, ihow do i seek asalym in USA please advise and how much time does it required? I am a single wolan without children, brother and father, sister
I was a child derivative under my mother, I got married without the knowledge that my green card will be denied due to “no longer a child of principal asylee”. I can stay and work in the usa, but I need to adjust this status. I can’t apply for Nunc pro tun(I-589) because Im 20 years old. Please I need advise?
I would need to learn more about your specific situation, but there is a good chance that you do have options that would allow you to file an adjustment of status application and to obtain a green card. If you would like to discuss your situation with me in more detail, please send me a message using the contact form on this website. At a minimum, I recommend that you at least discuss your case with an immigration lawyer before proceeding so that you don’t end up paying the filing fees for adjustment of status and then have your application denied because you didn’t follow the correct procedure for your situation.
Hi, I’m a derivative asylee in process of getting divorced. I dont have a job so cant afford a lawyer. I in need of help soon and have no idea what to do.
Any kind of help will be appreciated.
Ms. Dubois,
Depending on where you are located, your local law school may have a legal clinic that could provide you with legal assistance. You should consider contacting your local law schools to see if any offer a legal clinic that could assist you with your situation.
In addition, some churches also offer free legal assistance for immigrants so you may want to contact your church to see if they can offer you assistance.
Sincerely,
Kimberley
Me and my son were granted asylum because of my husband applying for us. After a year I applied for our green cards and we got it. Now, my husband’s been abusive with us since we got here. Was wondering if I could divorce him now and apply for citizenship for me and my son without any problem? Me and my husband are coming from the same country. Thank you!!!
An immigration lawyer will need to do an in depth consultation with you before being able to provide you with advice on your immigration options. Each immigration case is very fact specific and more details would be needed in order to give you proper legal advice.
Hi am a derivative asylee. And I got a request of evidence saying am not eligible to adjust since am married. But i can apply for asylum. Am 24yrs old . Can I apply for a nunc pro tunc?
I would need to review your case in more detail before being able to answer your question. Based on what you mentioned in you post, you may need to apply for nunc pro tunc asylum before you would be eligible to apply for adjustment of status based on being an asylee. However, there are other issues that need to be considered as well. For example, is your spouse a United States citizen? When did you get married?
Before you move forward with your adjustment of status case, you should first discuss your situation in detail with an immigration lawyer.
I applied for my greencard back in March 2012 and got married January 2013. Spouse is not in the US. Am just here with my two sons both US citizens.
Mboh,
If you would like to discuss your case in more detail with me, please complete the contact form on this website so that we can discuss your case privately.
Thanks,
Kimberley