What Requirements Must an Alien Granted Asylum Meet to Adjust Status?

By Coleman Jackson, Attorney & Counselor At Law
May 25, 2015

What Requirements Must an Alien Granted Asylum Meet to Adjust Status

The Immigration and Nationality Act (INA) §209(b) identifies five conjunctive conditions that any alien granted asylum must meet to be eligible for adjustment of status to Lawful Permanent Resident.  The five requirements are as follows:

  1. The asylee must apply for adjustment of status;
  2. The asylee must have been physically present in the United States for at least one year after being granted asylum;
  3. The asylee must continue to be a refugee within the meaning of INA §101(a)(42)(A) or a spouse or child of such a refugee;
  4. The asylee is not firmly resettled in any foreign country, and
  5. The asylee is admissible (except as otherwise provided under subsection (c)) as an immigrant under the INA at the time of examination for adjustment of status.

Nowhere in the INA does Congress require that an alien’s asylum, once granted, still be in effect at the time (s)he applies for adjustment of status.  In Joel Happy Siwe v. Eric H. Holder, Jr., 742 F. 3d 603 (5th Cir. 2014), the Court ruled that ‘such a requirement is conspicuously absent’ from the INA.

An asylee’s asylum may have been terminated, for example for specified criminal conviction(s); like Joel Happy Siwe’s were.  The asylee might be inadmissible under INA §209(b) (5).  But even so, a discretionary waiver of inadmissibility could possibly be available under INA §209(c) when allowing the alien to adjust status would serve humanitarian purposes, assure family unity, or otherwise serve the public interest.  We emphasize, however, that INA discretionary waivers may not be granted for several grounds of inadmissibility, such as, drug trafficking, espionage, and terrorist activities.  See 8 U.S.C. §§ 182(a) (2) (C), (a) (3) (A) & (a) (3) (B).

Seek appropriate legal counsel with regards to any specific factual situation.  This Overview is supplied for educational purposes and do not create an attorney-client relationship with the Immigration & Tax Law Firm of:

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