Physical Presence Guidance for Asylees and Refugees Applying for Adjustment of Status

Effective immediately, U.S. Citizenship and Immigration Services (USCIS) has updated guidance in the USCIS Policy Manual to clarify that both asylees and refugees must have been physically present in the United States for one year when we adjudicate their Form I-485, Application to Register Permanent Residence or Adjust Status, rather than at the time they file their adjustment of status application. This applies to all Form I-485 and Form N-400, Application for Naturalization, applications pending on Feb. 2, 2023, and those filed on or after that date. This update will promote consistency across asylee and refugee adjustment of status applications. If we cannot determine whether an applicant satisfies the one-year physical presence requirement by reviewing their file or our records when we adjudicate their Form I-485, we may request additional evidence. This policy manual update also:

•Clarifies that asylee and refugee adjustment of status applicants previously admitted in J-1 or J-2 nonimmigrant status and otherwise subject to the two-year foreign residence requirement under Immigration and Nationality Act (INA) 212(e) do not need to meet that two-year requirement (or obtain a waiver) to adjust their status under INA 209; and •Makes minor technical updates, including clarifying processing steps for refugees seeking waivers of inadmissibility, removing references to the obsolete Form I-291, Decision on Application for Status as Permanent Resident, and adding regulatory citations related to asylum termination procedures.

The new guidance can be found in the USCIS Policy Manual. Visit the Policy Manual Feedback page to comment on this update. USCIS welcomes feedback on this guidance and will consider any comments received in future updates.l for asylum with the court. Instead, they technically can file the application with U.S. Citizenship and Immigration Services. But often, people did not know this and missed the critical one-year deadline to file the application, leaving them ineligible for asylum.

What reporting on the programs largely left out, however, was what initiated them in the first place. The programs were created to address the serious dangers of overcrowding in temporary CBP detention sites. The first program began just over a year after the deadliest year for children in CBP custody. Six children died in CBP custody between September 2018 and May 2019. Children and monitors reported inhumane, unsanitary, and crowded conditions in CBP holding facilities where children were kept for weeks at a time.

In the first two months of the Biden administration, rising numbers of unaccompanied children in Border Patrol custody led to the increased risk of yet another tragedy occurring to a child at the border. By late March 2021, when the NTR program began, there were nearly 5,800 children locked in Border Patrol custody on a daily basis. It was against this backdrop that the Biden administration attempted to address increased numbers of families with children arriving at the border. Had they been successful, the programs would have allowed for the quick processing of families and reduced their time in CBP custody.

However, the programs revealed much larger cracks in our immigration system—particularly for asylum seekers. Rapid processing at the border can only offer a short-term band-aid for our broken immigration system. Only sustained long-term investment in our humanitarian protection system can avoid the need for rushed programs with harmful side effects.l