United States Immigration law states that a spouse or unmarried child may be granted asylum if accompanying or following to join the principal person who was granted asylum. In order to qualify for derivative asylum, the parties involved must be legally married and any child being petitioned must already exist at the time at which asylum is granted. Meaning, if you are granted asylum today and marry someone next week, the person you married is not eligible for derivative asylum. In the case of a child born after asylum is granted, you will have to prove that you are the parent of the child and the child was “in utero” on the date asylum was granted to you. Proving these facts is something that an immigration lawyer can assist you with.
When initially filing for asylum, it is important that the spouse and children are named on the application. Naming the spouse and children on the application allows for them to receive the same status as the principal asylee without having to submit additional paperwork. If the children are not named on the application or are not in the United States, the principal asylee is required to file additional documents, which can be completed with the help of an immigration attorney.
Spouse or child named on the application
When the spouse and unmarried children are named on the asylum application (form I-589) and are in the U.S., they will derive asylum on the same date as the principal asylee. Asylum will be granted to them as long as none of the bases for denial are present. Bases for denial include serious criminal convictions, security threat, or persecution of others. The spouse and children will individually receive I-94s showing their asylee status. An immigration lawyer may be able to assist in the event of a denial.
Spouse or child not named on application or living abroad
In situations where the spouse or child of the principal asylee was not named on the application, or they live abroad, the asylee is required to file Form I-730, Refugee/Asylee Relative Petition, for each qualifying family member. The principal asylee is required to petition for their family members within two years of obtaining asylum. Form I-730 must be submitted along with evidence of the familial relationship (marriage certificate, birth certificate), and a recent photograph of each family member. Additional documentation is required for adopted children, stepchildren, and children born out of wedlock when the father is the principal asylee. An immigration attorney can assist by providing the correct paperwork for such cases. Once approved, the principal asylee is notified on Form I-797. If the derivative asylees are outside the United States, the file is forwarded to the U.S. embassy or consulate where they reside. The spouse or child is then notified to appear for an interview at the embassy or consulate where their eligibility is confirmed.
