[Federal Register Volume 62, Number 219 (Thursday, November 13, 1997)]
[Rules and Regulations]
[Pages 60769-60772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29770]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 204
[INS No. 1845-97]
RIN 1115-AE77
Prima Facie Review of Form I-360 When Filed by Self-Petitioning
Battered Spouse/Child
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interm rule with request for comments.
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SUMMARY: This interim rule amends the Immigration and Naturalization
Service (Service) regulations to enable the Service to review Form I-
360, Petition for Amerasian, Widow(er) or Special Immigrant, filed by a
battered spouse or child, to determine whether a prima facie case has
been established. Recent legislation broadened the definition of aliens
who qualify for public assistance to include battered aliens, and
specifically those aliens whose self-petitions have been approved and
those who file a self-petition which establishes a prima facie case for
immigrant classification under the Violence Against Women Act.
DATES: Effective Date: This interim rule is effective November 13,
1997.
Comment Date: Written comments must be submitted on or before January
12, 1998.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC
20536, Attn: Public Comment Clerk. To ensure proper handling, please
reference the INS number 1845-97 on your correspondence. Comments are
available for public inspection at this location by calling (202) 514-
3291 to arrange an appointment.
FOR FURTHER INFORMATION CONTACT:
Karen FitzGerald, Staff Officer, Residence and Status Branch,
Immigration and Naturalization Service, 425 I Street, Room 3214,
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
The Immigration and Nationality Act (the Act) allows a citizen or
lawful permanent resident (LPR) of the United States to seek immigrant
status for certain alien relatives from the Service. In order to
receive this benefit, a visa petition must be filed on behalf of the
alien relative and approved by the Service. The alien must then qualify
for immigrant visa issuance abroad or adjustment of status in the
United States.
Historically, the initiation of the visa petition process was
solely at the discretion of the U.S. citizen or LPR relative. For that
reason, the citizen or LPR effectively controlled the ability of an
alien spouse or child to regularize his or her immigration status.
Congress, in the Violent Crime Control and Law Enforcement Act of 1994
(the Crime Bill), Public Law 103-322, dated September 13, 1994,
recognized the potential for misuse of this discretion within
households where domestic violence occurs. Title IV of the Crime Bill,
the Violence Against Women Act (VAWA), contains provisions which enable
these battered spouses and children to self-petition for immigrant
classification, thus limiting the ability of an abusive citizen or LPR
to use the immigration laws to perpetuate further violence against a
spouse or child residing in the United States.
Interim Rule
On March 26, 1996, the Service published an interim rule at 61 FR
13061, establishing the eligibility requirements for battered spouses
and children using the self-petitioning process. The Service received
numerous comments which are under consideration as the final rule is
prepared for publication. This rule does not in any way alter the
eligibility or evidentiary requirements set forth in that interim rule.
Impact of New Legislation
Since the Service published its interim rule, Congress has enacted
new legislation that affects the ability of most aliens to receive
public assistance. In the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA), Congress mandated that only
``qualified aliens,'' as defined by statute, were eligible for public
assistance. Section 501 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), amended the definition of
``qualified alien'' to include battered aliens, including certain
aliens who file or have
[[Page 60770]]
approved self-petitions. This ``qualified alien'' status is afforded
not only to aliens with approved self-petitions, but also to those who
file a self-petition which establishes a prima facie case for immigrant
classification.
Purpose of Establishing a Prima Facie Case
At the present time, the Service adjudicates the Form I-360,
Petition for Amerasian, Widow(er) or Special Immigrant, and issues a
notice of approval to those self-petitioning spouses and children who
demonstrate eligibility. Upon approval of the self-petition, the
applicant is a ``qualified alien'' for purposes of the PRWORA. Often,
however, the initial submission does not comply with all of evidentiary
burdens required for the Service to adjudicate the self-petition. In
such cases, pursuant to Service regulations, self-petitioners are
generally sent a request for evidence which sets forth the deficiencies
of the application and allows the applicant 60 days in which to submit
supplemental documentation. The applicant may be granted an additional
60 days at the discretion of the Service pursuant to current
regulations at 8 CFR 204.1(h).
However, because battered aliens can be ``qualified aliens''
without approval of the petition, the Service must also evaluate the
petition and the evidence submitted in support of the petition to
determine if the alien has established a prima facie case. Although the
statute affords benefits to those who establish prima facie
eligibility, neither the statute nor the legislative history adequately
details the requirements for establishing this eligibility.
Conventional dictionary definitions are of little assistance in this
regard. Without standards, determinations could be made inconsistently
and with varying constancy to Congressional intent, which would be
detrimental to the purpose of the statute and to the individual
petitioner trying to meet it. This interim rule explains the standards
to be utilized by the Service in determining whether the petitioner has
established a prima facie case.
Requirements for Demonstrating a Prima Facie Case
The prima facie determination will be made only after a self-
petition has been filed with the Service, and the decision to issue
that Notice of Prima Facie Case (Notice) rests solely with the Service.
In evaluating whether a self-petitioner has established a prima facie
case, the Service must have evidence of each of the required elements
of the self-petition as detailed in Service regulations at Sec. 204.2
(c)(1) and (e)(1). Accordingly, self-petitioners should submit Form I-
360 and credible relevant evidence in support of the petition
addressing each of the statutory elements as detailed in the
instructions accompanying Form I-360: (1) existence of the qualifying
relationship; (2) the citizenship or immigration status of the abuser;
(3) the self-petitioner's eligibility for immigrant classification; (4)
residence in the United States; (5) evidence that, during the
qualifying relationship, the petitioner and abuser resided together in
the United for some unspecified period of time; (6) battery or extreme
cruelty; (7) good moral character; (8) extreme hardship; and (9) in the
case of a self-petitioning spouse, good faith marriage. The elements
and evidentiary requirements are set forth in 8 CFR Sec. 204.2 (c)(1)
and (e)(1).
If the Service determines that a petitioner has demonstrated prima
facie eligibility, a Notice of Prima Facie Case will be issued. The
Notice is neither a benefit nor immigration status in its own right,
and an applicant cannot apply solely for a Notice of Prima Facie Case.
The decision to issue such a notice rests solely with the Service.
Applicants are encouraged to submit full documentation at the earliest
possible time. However, bona fide candidates for self-petitioning
should not postpone filing the petition because they are unable to
immediately comply with all of the regulatory requirements.
As an example, an applicant who has been unable to obtain police
reports from each place of residence during the past 3 years could
submit other supporting documentation which addresses the good moral
character element of the adjudication. For the purpose of making a
prima facie determination, an affidavit from the applicant stating he
or she has never been arrested and is a person of good moral character
may be considered acceptable for purposes of establishing a prima facie
case. However, on its own, this affidavit is not sufficient to meet the
evidentiary burden of Sec. 204.2 (c)(2)(v) and (e)(2)(v). Before final
adjudication, the applicant must still submit police reports or, if
they are unavailable, some other type of documentation as required by
those provisions.
The Service's decision to issue or not to issue a Notice will not
be a factor in the adjudication of the underlying petition, nor will it
constitute a binding determination of the credibility of the evidence
submitted. Prima facie evidence will not always fully or completely
satisfy the evidentiary burdens, and may be contradicted by evidence,
documentation, or affidavits (or any other credible evidence) which
come to the attention of the Service after a favorable prima facie
determination has been made. Self-petitioners should be aware that such
situations may result in the denial of the I-360 petition, even if a
favorable prima facie determination was initially made. Conversely, the
Service's decision not to issue the Notice of Prima Facie Case is not
fatal to the underlying petition.
The prima facie evaluation will consist of an initial review of the
Form I-360 and the supporting documentation. Applicants who set forth a
prima facie case will receive a Notice of Prima Facie Case to document
their ``qualified alien'' status for public benefits. The Notice is
valid until the Service has adjudicated the petition. At present, the
Service intends to issue the Notice with a validity period of 150 days,
which exceeds the time required for adjudication in the majority of
these cases. In those few cases when the Service is unable to complete
the adjudication within the 150-day period, the applicant will be able
to request an extension pursuant to the instructions on the Notice.
Because the Notice is intended solely for the purpose of enabling
petitioners to apply for public benefits within the United States, the
Service will only issue the Notice to petitioners residing in the
United States.
Filing and Initial Processing
Because the prima facie determination is not a separate benefit
granted by the Service, the procedures that an applicant must follow
are those set forth in the interim rule. The only procedural change
concerns the filing of the Form I-360. As a result of the Direct Mail
Notice published at 62 FR 16607 on April 7, 1997, all I-360 petitions
filed by a self-petitioning spouse, child, or parent on behalf of a
battered child, must be mailed directly to the Vermont Service Center,
75 Lower Weldon Street, St. Albans, VT 05479. Self-petitioners will be
provided with documentation indicating the Service has received the
self-petition (Notice of Receipt). After reviewing the petition, the
Service will mail applicants notification of the status of the
petition. Regardless of whether a Notice of Prima Facie Case is issued,
applicants who receive notice of an adverse preliminary finding will
have the opportunity to respond with additional evidence or arguments.
The self-petitioner will be advised by the Service as to the additional
evidence or documentation needed to support the petition, and will be
provided the opportunity to submit this additional evidence until the
Service makes a final decision.
[[Page 60771]]
Good Cause Exception
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comments, is based upon the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d). It is in
the public interest to provide prima facie determinations, which will
enable qualifying spouses and children to apply for public assistance
benefits. These resources and services may be critical to some
applicants as they seek safety and independence from the abuser.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities because of the following factors: This rule addresses
the grant of immigration benefits to certain individuals based on a
family relationship to an abusive citizen or lawful permanent resident
of the United States. This rule affects individuals, not small
entities, and the economic impact is not significant.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to and approved
by the Office of Management and Budget.
Executive Order 12612
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Paperwork Reduction Act
This interim rule does not impose any new reporting or
recordkeeping requirements. The information collection requirements
contained in this rule have been previously approved by the Office of
Management and Budget under the provisions of the Paperwork Reduction
Act. The clearance number for this collection is contained in 8 CFR
299.5, Display of control numbers.
List of Subjects in 8 CFR Part 204
Administrative practice and procedure, Aliens, Employment,
Immigration, Petitions.
PART 204-IMMIGRANT PETITIONS
1. The authority citation for part 204 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 1641; 8 CFR part 2.
2. Section 204.2 is amended by adding new paragraphs (c)(6) and
(e)(6), to read as follows:
Sec. 204.2 Petitions for relatives, widows, and widowers, and abused
spouses and children.
* * * * *
(c) * * *
(6) Prima facie determination--(i) Upon receipt of a self-petition
under paragraph (c)(1) of this section, the Service shall make a
determination as to whether the petition and the supporting
documentation establish a ``prima facie case'' for purposes of 8 U.S.C.
1641, as amended by section 501 of Public Law 104-208.
(ii) For purposes of paragraph (c)(6)(i) of this section, a prima
facie case is established only if the petitioner submits a completed
Form I-360 and other evidence supporting all of the elements required
of a self-petitioner in paragraph (c)(1) of this section. A finding of
prima facie eligibility does not relieve the petitioner of the burden
of providing additional evidence in support of the petition and does
not establish eligibility for the underlying petition.
(iii) If the Service determines that a petitioner has made a
``prima facie case,'' the Service shall issue a Notice of Prima Facie
Case to the petitioner. Such Notice shall be valid until the Service
either grants or denies the petition.
(iv) For purposes of adjudicating the petition submitted under
paragraph (c)(1) of this section, a prima facie determination--
(A) Shall not be considered evidence in support of the petition;
(B) Shall not be construed to make a determination of the
credibility or probative value of any evidence submitted along with
that petition; and,
(C) Shall not relieve the self-petitioner of his or her burden of
complying with all of the evidentiary requirements of paragraph (c)(2)
of this section.
* * * * *
(e) * * *
(6) prima facie determination--(i) Upon receipt of a self-petition
under paragraph (e)(1) of this section, the Service shall make a
determination as to whether the petition and the supporting
documentation establish a ``prima facie case'' for purposes of 8 U.S.C.
1641, as amended by section 501 of Public Law 104-208.
(ii) For purposes of paragraph (e)(6)(i) of this section, a prima
facie case is established only if the petitioner submits a completed
Form I-360 and other evidence supporting all of the elements required
of a self-petitioner in paragraph (e)(1) of this section. A finding of
prima facie eligibility does not relieve the petitioner of the burden
of providing additional evidence in support of the petition and does
not establish eligibility for the underlying petition.
(iii) If the Service determines that a petitioner has made a
``prima facie case'' the Service shall issue a Notice of Prima Facie
Case to the petitioner. Such Notice shall be valid until the Service
either grants or denies the petition.
(iv) For purposes of adjudicating the petition submitted under
paragraph (e)(1) of this section, a prima facie determination:
(A) Shall not be considered evidence in support of the petition;
(B) Shall not be construed to make a determination of the
credibility or
[[Page 60772]]
probative value of any evidence submitted along with that petition;
and,
(C) Shall not relieve the self-petitioner of his or her burden of
complying with all of the evidentiary requirements of paragraph (e)(2)
of this section.
* * * * *
Dated: July 21, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-29770 Filed 11-12-97; 8:45 am]
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