[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13061-13079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7219]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 204, 205 and 216
[INS No. 1705-95]
RIN 1115-AE04
Petition to Classify Alien as Immediate Relative of a United
States Citizen or as a Preference Immigrant; Self-Petitioning for
Certain Battered or Abused Spouses and Children
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the Immigration and Naturalization
Service (``the Service'') regulations to allow a spouse or child to
seek immigrant classification if he or she has been battered by, or
subjected to extreme cruelty committed by, the citizen or lawful
permanent resident spouse or parent. It also permits a spouse to seek
classification if his or her child has been battered by, or subjected
to extreme cruelty committed by, the citizen or lawful permanent
resident spouse. A qualified spouse or child who is living in the
United States but is not a permanent resident may use the procedures
established by this rule to self-petition for immigrant classification.
The self-petition may be filed without the abuser's knowledge or
consent, and may include the children of a self-petitioning spouse. A
person who is granted immigrant classification under this provision may
become eligible for lawful permanent resident status. A lawful
permanent resident of the United States has legal permission to live
and work in this country, and may later qualify for U.S. citizenship
through naturalization.
DATES: This interim rule is effective March 26, 1996. Written comments
must be received on or before May 28, 1996.
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 1705-95 on your correspondence. Comments are
available for public inspection at this location by calling (202) 514-
3048 to arrange an appointment.
[[Page 13062]]
FOR FURTHER INFORMATION CONTACT:
Rita A. Arthur, Senior Adjudications Officer, Adjudications Division,
Immigration and Naturalization Service, 425 I Street NW., Room 3214,
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
The Immigration and Nationality Act (``the Act'') allows certain
relatives of a citizen or lawful permanent resident of the United
States to be classified for immigration. These relatives are not
automatically entitled to immigrate; the Service must approve a visa
petition filed by the citizen or lawful permanent resident for the
family member, and the relative must qualify for immigrant visa
issuance abroad or adjustment of status in the United States.
Citizens and lawful permanent residents may choose whether and when
to petition for a relative. Most citizens and lawful permanent
residents seek permission to bring their family members to the United
States as soon as possible. They file for all their qualified
relatives, except family members who do not want to live in the United
States and those with whom they do not care to be reunited.
Some abusive citizens or lawful permanent residents, however,
misuse their control over the petitioning process. Instead of helping
close family members to legally immigrate, they use this discretionary
power to perpetuate domestic abuse of their spouses and minor children
who have been living with them in the United States. Abusers generally
refuse to file relative petitions for their closest family members
because they find it easier to control relatives who do not have lawful
immigration status. These family members are less likely to report the
abuse or leave the abusive environment because they fear deportation or
believe that only citizens and authorized immigrants can obtain legal
and social services. An abuser may also coerce family members'
compliance in other areas by threatening deportation or by promising to
file a relative petition in the future.
Crime Bill
The plight of these domestic abuse victims, who are unable to leave
the United States for financial, social, cultural, or other reasons,
was addressed by the Violent Crime Control and Law Enforcement Act of
1994 (``the Crime Bill''), Public Law 103-322, dated September 13,
1994. Title IV of the Crime Bill, The Violence Against Women Act of
1994 (``the VAWA''), contains several provisions that limit the ability
of an abusive citizen or lawful permanent resident to use the
immigration laws to further violence against a spouse or child in the
United States. Although the title of this portion of the Crime Bill
reflects the fact that many abuse victims are women, abused spouses and
children of either sex may benefit from these provisions. Section 40701
of the Crime Bill allows a qualified spouse or child to self-petition
for immigrant classification based on the relationship to the abusive
citizen or lawful permanent resident of the United States, without the
abuser's participation or consent. This section also permits an
eligible abused spouse to include his or her children in the petition,
if the children have not petitioned separately. Section 40702 of the
Crime Bill, which will be the subject of a separate rulemaking,
provides guidelines for the acceptance and evaluation of credible
evidence of abuse submitted with certain requests for removal of
conditions on residency under section 216 of the Act. Section 40703 of
the Crime Bill, which will also be addressed separately, allows certain
abused spouses and children who have been continuously physically
present in the United States for the past 3 years to apply for
suspension of deportation.
Basic Self-Petitioning Eligibility Requirements
A spouse who is self-petitioning under section 40701 of the Crime
Bill must show that he or she: (1) is the spouse of a citizen or lawful
permanent resident of the United States; (2) is eligible for immigrant
classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act
based on that relationship; (3) is residing in the United States; (4)
has resided in the United States with the citizen or lawful permanent
resident spouse; (5) has been battered by, or has been the subject of
extreme cruelty perpetrated by, the citizen or lawful permanent
resident during the marriage; or is the parent of a child who has been
battered by, or has been the subject of extreme cruelty perpetrated by,
the citizen or lawful permanent resident during the marriage; (6) is a
person of good moral character; (7) is a person whose deportation would
result in extreme hardship to himself, herself, or his or her child;
and (8) entered into the marriage to the citizen or lawful permanent
resident in good faith.
A child who is self-petitioning under section 40701 of the Crime
Bill must show that he or she: (1) is the child of a citizen or lawful
permanent resident of the United States; (2) is eligible for immigrant
classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act
based on that relationship; (3) is residing in the United States; (4)
has resided in the United States with the citizen or lawful permanent
resident parent; (5) has been battered by, or has been the subject of
extreme cruelty perpetrated by, the citizen or lawful permanent
resident parent while residing with that parent; (6) is a person of
good moral character; and (7) is a person whose deportation would
result in extreme hardship to himself or herself.
Spouse of a Citizen or Lawful Permanent Resident
The Crime Bill's changes to section 204(a)(1) of the Act, which
allow a self-petition to be filed, describe the spousal relationship
between the self-petitioner and the abuser in the present tense. They
characterize a self-petitioning spouse as a person who is the spouse of
a citizen or lawful permanent resident of the United States, and
include no provisions for filing a self-petition based on a former
spousal relationship. This rule, therefore, requires the self-
petitioning spouse to be legally married to the abuser when the
petition is filed. It specifies that a spousal self-petition must be
denied if the petitioner's marriage to the abuser legally ended by
annulment, death, or divorce before that time. The rule also stipulates
that the abuser be a citizen or lawful permanent resident of the United
States when the self-petition is filed.
Although it does not allow a self-petition to be filed based on a
former spousal relationship, section 40701 of the Crime Bill directs
the Service not to revoke the approval of a self-petition solely
because the marriage has legally ended. This statutory provision
protects the self-petitioner against an abuser's attempt to regain
control over the petitioning process through legal termination of the
marriage. It also allows a qualified self-petitioner to make decisions
concerning the abusive relationship without regard to immigration
considerations. This rule reflects the legislative provision
safeguarding the self-petitioner's control over the immigration
classification process.
While section 40701 of the Crime Bill requires the marriage to be
legally valid at the time of filing and specifies that its termination
after approval will not be the sole basis for revocation, it does not
address the effect of a legal termination occurring between the filing
and the approval of the self-petition. In the absence of explicit
legislative guidelines, the Service has determined that protections for
spouses whose self-
[[Page 13063]]
petitions have been approved should be extended to cover the entire
period after the self-petition is filed. This rule, therefore, allows
an otherwise approvable self-petition to be granted despite the legal
termination of the marriage through annulment, divorce, or death while
the self-petition was pending before the Service. It provides that the
legal termination of the marriage after the self-petition has been
properly filed with the Service will have not effect on the Service's
decision concerning the self-petition.
The rule further provides, however, that a pending spousal self-
petition will be denied or an approved spousal self-petition will be
revoked if the self-petitioner chooses to remarry before becoming a
lawful permanent resident. By remarrying, the self-petitioner has
established a new spousal relationship and has shown that he or she no
longer needs the protections of section 40701 of the Crime Bill to
equalize the balance of power in the relationship with the abuser. If
the new husband or wife is a citizen or lawful permanent resident of
the United States, he or she may file for the former self-petitioner's
classification as an immigrant. The self-petitioner also would not be
precluded from filing a self-petition based on the new family
relationship if the new spouse is an abusive citizen or lawful
permanent resident of the United States. A self-petition filed on the
basis of a new marriage will be assigned a priority date based on the
date it was properly filed with the Service or based on the date a visa
petition filed by the current abusive spouse was properly filed with
the Service. This rule does not allow a priority date to be transferred
from a self-petition or visa petition based on a prior marriage.
It also provides that changes in the abuser's citizenship or lawful
permanent resident status will not affect the validity of an approved
self-petition. This provision eliminates the possibility that an abuser
could recapture control over the immigration classification process by
changing his or her own immigration status. An approved self-petition
will not be revoked solely because the abuser subsequently abandons
lawful permanent resident status, renounces United States Citizenship,
is deported, or otherwise changes immigration status. Similarly, a
self-petition approved on the basis of a relationship to a lawful
permanent resident will not be automatically upgraded to a petition for
immediate relative classification if the abuser becomes a naturalized
citizen of the United States. A spouse would not be precluded from
filing a new self-petition for classification as an immediate relative
after the abuser naturalizes, provided he or she continues to meet the
self-petitioning requirements.
This rule requires a self-petitioning spouse to provide documentary
evidence of his or her legal relationship to the abuser and evidence of
the abuser's immigration or citizenship status. Self-petitioners are
encouraged to submit primary evidence whenever possible, although the
Service will consider any relevant credible evidence. The Service's
regulations at 8 CFR 204.1 and 204.2 provide detailed information
concerning primary and secondary supporting documentation of a spousal
relationship to a citizen or lawful permanent resident.
Primary evidence of a marital relationship is a marriage
certificate issued by civil authorities and proof of the termination of
all prior marriages, if any, of both the self-petitioner and the
abuser. Primary evidence of the abuser's U.S. citizenship or lawful
permanent residence is: (1) a birth certificate issued by a civil
authority establishing the abuser's birth in the United States; (2) the
abuser's unexpired full-validity United States passports; (3) a
statement issued by a U.S. consular officer certifying the abuser to be
a U.S. citizen and the bearer of a currently valid U.S. passport; (4)
the abuser's Certificate of Naturalization or Certificate of
Citizenship; (5) a Department of State Form FS-240, Report of Birth
Abroad of a Citizen of the United States, relating to the abuser; or
(6) the abuser's Form I-151 or Form I-551 Alien Registration Receipt
Card, or other proof given by the Service as evidence of lawful
permanent residence.
If primary or secondary evidence of an abuser's immigration or
citizenship status is not available, this rule provides that the
Service will attempt to electronically verify the abuser's status from
information contained in Service computerized records. Other Service
records may also be reviewed at the discretion of the adjudicating
officer. If the Service is unable to identify a record as relating to
the abuser or the record does not establish the abuser's immigration or
citizenship status, the self-petition will be adjudicated based on the
information submitted by the self-petitioner.
Child of a Citizen or Lawful Permanent Resident
Section 40701 of the Crime Bill describes a self-petitioning child
as a person who is the child of a citizen or lawful permanent resident
of the United States. By again characterizing the relationship between
the self-petitioner and the abuser in the present tense, these
amendments to the Act clearly show that the required relationship must
exist when the petition is filed.
The term ``child'' is defined in section 101(b)(1) of the Act as
including certain children born in or out of wedlock, and certain
legitimated, adopted, and stepchildren. This definition also requires a
child to be unmarried and less than 21 years of age. The rule,
therefore, requires a self-petitioning child to be unmarried, less than
21 years of age, and to otherwise qualify as the abuser's ``child''
when the self-petition is filed and when it is approved. It also
requires the self-petitioning child's abusive parent to be a U.S.
citizen or lawful permanent resident when the self-petition is filed
and when it is approved.
This rule specifies that an approved self-petition for a child of a
United States citizen, however, will be automatically converted to an
approved petition for classification as the unmarried or married adult
son or daughter of a United States citizen when the self-petitioner
reaches 21 years of age or marries. Similarly, an approved self-
petition for a child of a lawful permanent resident of the United
States will be automatically converted to an approved petition for
classification as the unmarried adult son or daughter of a lawful
permanent resident when the unmarried self-petitioner reaches 21 years
of age. The approval of a self-petition for the child of an abusive
lawful permanent resident must be automatically revoked, however, when
the son or daughter marries. There is no immigration category for a
married son or daughter of a lawful permanent resident. An
automatically converted self-petition will retain the self-petition's
original priority date.
Under the provisions of this rule, a self-petitioning child must be
the child of the abusive citizen or lawful permanent resident but need
not be the child of a self-petitioning spouse. A self-petition may be
approved although the child's other parent is unable or unwilling to
self-petition. The rule also does not require the self-petitioning
child to be in the abuser's legal custody. Termination of the abuser's
parental rights or a change in legal custody does not alter the self-
petitioning relationship, provided the self-petitioner meets the
definition of ``child'' contained in section 101(b)(1) of the Act when
the self-petition is approved, or met that definition at the time of
approval.
As discussed previously under ``Spouse of a citizen or lawful
permanent resident,'' changes in the
[[Page 13064]]
abuser's citizenship or lawful permanent resident status will not
affect the validity of an approved self-petition. This regulatory
provision eliminates the possibility that an abuser could recapture
control over the abused child's immigration classification by changing
his or her own immigration status. An approved self-petition for a
child will not be revoked solely because the abuser subsequently
abandons lawful permanent resident status, renounces United States
citizenship, is deported, or otherwise changes immigration status.
Similarly, a self-petition approved on the basis of a parent-child
relationship to a lawful permanent resident will not be automatically
upgraded to a petition for immediate relative classification if the
abuser becomes a naturalized citizen of the United States. The abused
child would not be precluded from filing a new self-petition for
classification as an immediate relative after the abuser naturalizes,
provided the child continues to meet the self-petitioning requirements.
This rule requires a self-petitioning child to provide documentary
evidence of his or her relationship to the abuser and evidence of the
abuser's immigration or citizenship status. Self-petitioners are
encouraged to submit primary evidence whenever possible, although the
Service will consider any relevant credible evidence. The Service's
regulations at 8 CFR 204.1 and 204.2 provide detailed information
concerning primary or secondary supporting documentation of a parent-
child relationship to a citizen or lawful permanent resident.
Primary evidence of the relationship between: (1) a child and an
abusive biological mother is the child's birth certificate issued by
civil authorities; (2) a child born in wedlock and an abusive
biological father is the child's birth certificate issued by civil
authorities, the marriage certificate of the child's parents, and
evidence of legal termination of all prior marriages, if any; (3) a
legitimated child and an abusive biological father is the child's birth
certificate issued by civil authorities, and evidence of the child's
legitimation; (4) a child born out of wedlock and an abusive biological
father is the child's birth certificate issued by civil authorities
showing the father's name, and evidence that a bona fide parent-child
relationship has been established between the child and the parent; (5)
a stepchild and a stepparent is the child's birth certificate issued by
civil authorities, the marriage certificate of the child's parent and
the stepparent showing marriage before the stepchild reached 18 years
of age, and evidence of legal termination of all prior marriages of
either parent, if any; (6) an adopted child and an abusive adoptive
parent is an adoption decree showing that the adoption took place
before the child reached 16 years of age, and evidence that the child
has been residing with and in the legal custody of the abusive adoptive
parent for at least 2 years.
Primary evidence of the abuser's U.S. citizenship or lawful
permanent residence is: (1) a birth certificate issued by a civil
authority establishing the abuser's birth in the United States; (2) the
abuser's unexpired full-validity United States passport; (3) a
statement issued by a U.S. consular officer certifying the abuser to be
a U.S. citizen and the bearer of a currently valid U.S. passport; (4)
the abuser's Certificate of Naturalization or Certificate of
Citizenship; (5) a Department of State Form FS-240, Report of Birth
Abroad of a Citizen of the United States, relating to the abuser; and
(6) the abuser's Form I-151 or Form I-551 Alien Registration Receipt
Card, or other proof given by the Service as evidence of lawful
permanent residence.
If primary or secondary evidence of an abuser's immigration or
citizenship status is not available, this rule provides that the
Service will attempt to electronically verify the abuser's status from
information contained in Service computerized records. Other Service
records may also be reviewed at the discretion of the adjudicating
officer. If the Service is unable to identify a record as relating to
the abuser or the record does not establish the abuser's immigration or
citizenship status, the self-petition will be adjudicated based on the
information submitted by the self-petitioner.
Eligible for Immigrant Classification
Section 40701 of the Crime Bill requires a self-petitioning spouse
or child to be eligible for classification as an immediate relative
under section 201(b)(2)(A)(i) of the Act or for preference
classification under section 203(a)(2)(A) of the Act. Eligibility as an
immediate relative or for preference classification requires more than
a mere showing of a legal relationship to a citizen or lawful permanent
resident of the United States; other conditions must also be met.
Section 40701 of the Crime Bill amended the Act to ensure that self-
petitioners would be subject to certain provisions of the Immigration
Marriage Fraud Amendments of 1986 (IMFA), Public Law 99-639, November
10, 1986, which were enacted by Congress to detect and deter
immigration-related marriage fraud. This rule reflects these statutory
requirements.
A petition must be denied under the provisions of section 204(c) of
the Act if there is substantial and probative evidence that the self-
petitioner has ever attempted or conspired to enter into a marriage for
the purpose of evading the immigration laws. The self-petitioner does
not need to have received a benefit through the attempt or conspiracy.
He or she also need not have been convicted of, or even prosecuted for,
the attempt or conspiracy. Evidence of the attempt or conspiracy,
however, must be contained in the self-petitioner's immigration file.
Section 204(g) of the Act may also apply to a self-petition. It
prohibits the approval of a self-petition if the marriage creating the
relationship to the citizen or permanent resident took place while the
self-petitioner was in deportation, exclusion, or related proceedings,
unless the self-petitioner provides clear and convincing evidence that
the marriage was not entered into for the purpose of obtaining
immigration benefits. This limitation will not apply if the self-
petitioner has lived outside the United States for at least 2 years
after the marriage. The ``clear and convincing'' standard places a
heavier burden on the petitioner than the ``preponderance of evidence''
criteria generally applicable to visa petitions and self-petitions.
Although there may be no proof that the marriage was fraudulent, a
self-petition subject to this restriction must be denied if the
petitioner does not provide ``clear and convincing'' evidence that the
marriage was entered into in good faith.
The provisions of section 204(a)(2) of the Act, which were amended
by section 40701(b) of the Crime Bill to encompass certain self-
petitions, may also preclude the approval of a self-petition. A self-
petition must be denied if the lawful permanent resident abuser
acquired permanent residence within the past 5 years based on a
marriage to a citizen or lawful permanent resident, unless the petition
is supported by clear and convincing evidence that the prior marriage
was not entered into for the purpose of evading any provision of the
immigration laws. This restriction will not apply if the earlier
marriage ended because of the death of the spouse. As explained in the
previous paragraph, the ``clear and convincing'' standard imposes a
heavier burden of proof on the self-petitioner. Although there may be
no proof that the marriage was fraudulent, a self-petition subject to
this restriction must be denied if the petitioner does not provide
``clear and
[[Page 13065]]
convincing'' evidence that the earlier marriage was bona fide.
Before determining that a self-petition must be denied under
section 204(c), 204(g), or 204(a)(2) of the Act, the Service will allow
a self-petitioner the opportunity to provide additional evidence or
arguments concerning the case. A denial under section 204(g) or
204(a)(2) of the Act is without prejudice to the filing of a new self-
petition when the spouse or child is able to comply with these
requirements.
The Service has previously determined that a variety of evidence
may be used to establish a good-faith marriage, and a self-petitioner
should submit the best evidence available. Evidence of good faith at
the time of marriage may include, but is not limited to, proof that one
spouse has been listed as the other's spouse on insurance policies,
property leases, income tax forms, or bank accounts; and testimony or
other evidence regarding courtship, wedding ceremony, shared residence
and experiences. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Other
types of readily available evidence might include the birth
certificates of children born to the relationship; police, medical, or
court documents providing information about the relationship; and
affidavits of persons with personal knowledge of the relationship.
Self-petitioners who submit affidavits are encouraged to submit
affidavits from more than one person. Other types of evidence may also
be submitted; the Service will consider any relevant credible evidence.
Residence in the United States and Residence With the Abuser
Section 40701 of the Crime Bill requires the self-petitioner to be
residing in the United States and to have resided in the United States
with the abuser. A self-petition will not be approved if the self-
petitioner is not living in the United States or has never lived with
the abuser in the United States. Under the provisions of this rule,
however, the self-petitioner is not required to be residing with the
abuser when the petition is filed. The rule also does not limit the
time that may have elapsed since the self-petitioner last resided with
the abuser.
``Residence'' is defined in section 101(a)(33) of the Act as a
person's general place of abode. It is also described as a person's
principal, actual dwelling place in fact, without regard to intent. A
self-petitioner cannot meet the residency requirements by merely
visiting the United States or visiting the abuser's home in the United
States while continuing to maintain a general place of abode or
principal dwelling place elsewhere. This rule, however, does not
require the self-petitioner to have lived in the United States or with
the abuser in the United States for any specific length of time. It
also does not mandate continuous physical presence in the United
States. A qualified self-petitioner may have moved to the United States
only recently, made any number of trips abroad, or resided with the
abuser in the United States for only a short time.
Evidence of residency with the abuser in the United States may take
many forms. Employment records, utility receipts, school records,
hospital or medical records, birth certificates of children born to the
spouses in the United States, deeds, mortgages, rental records,
insurance policies, or similar documents have been accepted as evidence
of residency. This rule allows the submission of one or more documents
showing the self-petitioner and the abuser residing together. It also
allows the submission of two or more documents that, when considered
together, establish that the self-petitioner and the abuser were
residing at the same location concurrently. A self-petitioner may also
submit affidavits to establish residency with the abuser. Self-
petitioners who file affidavits are encouraged to provide the
affidavits of more than one person. Other types of evidence may also be
submitted; the Service will consider any relevant credible evidence.
Battery or Extreme Cruelty
Section 40701 of the Crime Bill requires a self-petitioning spouse
to have been battered by, or been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident spouse; or to
be the parent of a child who was battered by, or who was the subject of
extreme cruelty perpetrated by, the citizen or lawful permanent
resident during the marriage. It requires a self-petitioning child to
have been battered by, or to have been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident parent while
the child was residing with that parent. This rule reflects the
statutory requirements by specifying that only certain types of abuse
will qualify a spouse or child to self-petition. ``Qualifying abuse''
under this rule is abuse that meets the criteria of section 40701 of
the Crime Bill concerning when, by whom, to whom, and to what degree
the domestic abuse occurred.
The qualifying abuse must have taken place during the statutorily
specified time. A spousal self-petitioner must show that the abuse took
place during the marriage to the abuser. A self-petitioning child must
show that he or she was abused while residing with the abuser. Battery
or extreme cruelty that happened at other times is not qualifying
abuse. There is no limit on the time that may have elapsed since the
last incident of qualifying abuse occurred.
The qualifying abuse also must have been committed by the abusive
citizen or lawful permanent resident spouse or parent. Battery or
extreme cruelty by any other person is not qualifying abuse, unless it
can be shown that the citizen or lawful permanent resident willfully
condoned or participated in the abusive act(s).
Only abuse perpetrated against the self-petitioning spouse, the
self-petitioning child, or the self-petitioning spouse's child will be
considered qualifying. Acts ostensibly aimed at some other person or
thing may be considered qualifying only if it can be established that
these acts were deliberately used to perpetrate extreme cruelty against
the self-petitioner or the self-petitioning spouse's child. Battery or
extreme cruelty committed solely against a third party and in no way
directed at or used against the spouse or child is not qualifying
abuse.
The qualifying abuse also must have been sufficiently aggravated to
have reached the level of battery or extreme cruelty. Service
regulations at 8 CFR 216.5(e)(3)(i) currently define the phrase ``was
battered by or was the subject of extreme cruelty.'' This definition
was initially developed to facilitate the filing and adjudication of
requests to waive certain requirements for removal of conditions on
residency. These waivers are based on the applicant's claim of battery
or extreme cruelty perpetrated by the citizen or lawful permanent
resident spouse or parent. Since the regulatory definition has proven
to be flexible and sufficiently broad to encompass all types of
domestic battery and extreme cruelty, this rule adopts an identical
definition for evaluating claims of battering or extreme cruelty under
section 40701 of the Crime Bill. The definition reads as follows:
For the purpose of this chapter, the phrase ``was battered by or
was the subject of extreme cruelty'' includes, but is not limited
to, being the victim of any act or threatened act of violence,
including any forceful detention, which results or threatens to
result in physical or mental injury. Psychological or sexual abuse
or exploitation, including rape, molestation, incest (if the victim
is a minor), or forced prostitution shall be considered acts of
violence.
[[Page 13066]]
The acts mentioned in this definition--rape, molestation, incest if
the victim is a minor, and forced prostitution--will be regarded by the
Service as acts of violence whenever they occur. Many other abusive
actions, however, may also be qualifying acts of violence under this
rule. Acts that, in and of themselves, may not initially appear violent
may be part of an overall pattern of violence. It is not possible to
cite all perpetrations that could be acts of violence under certain
circumstances. The Service does not wish to mislead a potentially
qualified self-petitioner by establishing a partial list that may be
subject to misinterpretation. This rule, therefore, does not itemize
abusive acts other than those few particularly egregious examples
mentioned in the definition of the phrase ``was battered by or was the
subject of extreme cruelty.''
This rule requires a self-petitioner to provide evidence of
qualifying abuse. If the self-petition is based on a claim that the
self-petitioning spouse's child was battered or subjected to extreme
cruelty committed by the citizen or lawful permanent resident spouse,
this rule requires the self-petition to be accompanied by evidence of
the abuse and evidence of the relationship between the self-petitioner
and the abused child. Available relevant evidence will vary, and self-
petitioners are encouraged to provide the best available evidence of
qualifying abuse. A self-petitioner is not precluded from submitting
documentary proof of non-qualifying abuse with the self-petition;
however, that evidence can only be used to establish a pattern of abuse
and violence and to bolster claims that qualifying abuse also occurred.
The rule provides that evidence of abuse may include, but is not
limited to, reports and affidavits from police, judges and other court
officials, medical personnel, school officials, clergy, social workers,
and other social service agency personnel. Persons who have obtained an
order of protection against the abuser or taken other legal steps to
end the abuse are strongly encouraged to submit copies of the relating
legal documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. This rule also provides that
other forms of credible evidence will be accepted, although the Service
will determine whether documents appear credible and the weight to be
given to them.
Self-petitioners who can provide only affidavits are encouraged to
submit the affidavits of more than one person. The Service is not
precluded from deciding, however, that the self-petitioner's
unsupported affidavit is credible and that it provides relevant
evidence of sufficient weight to meet the self-petitioner's burden of
proof.
Good Moral Character
Section 40701 of the Crime Bill requires all self-petitioners to be
persons of good moral character, but does not specify the period for
which good moral character must be established. This rule requires
self-petitioning spouses and self-petitioning children who are 14 years
of age or older to provide evidence showing that they have been persons
of good moral character for the 3 years immediately preceding the date
the self-petition is filed. It does not preclude the Service from
choosing to examine the self-petitioner's conduct and acts prior to
that period, however, if there is reason to believe that the self-
petitioner may not have been a person of good moral character in the
past. The rule provides that self-petitioning children who are less
than 14 years of age are not required to submit evidence of good moral
character when filing the self-petition. A self-petitioner who is less
than 14 years of age will be presumed to be a person of good moral
character. This presumption does not preclude the Service from
requesting evidence of good moral character, however, if there is
reason to believe that the self-petitioning child may lack good moral
character. The rule provides that a self-petition filed by a person of
any age may be denied or revoked if evidence establishing that the
person lacks good moral character is contained in the Service file.
It also provides that the Service will evaluate claims of good
moral character on a case-by-case basis, taking into account the
provisions of section 101(f) of the Act and the standards of the
average citizen in the community. Section 101(f) of the Act lists the
classes of persons who cannot be found to be persons of good moral
character, and specifies that persons not within any of those classes
may also be found to be lacking good moral character. The Service
cannot find a person to be of good moral character under section 101(f)
if he or she: (1) is or was a habitual drunkard; (2) is or was engaged
in prostitution during the past 10 years as described in section
212(a)(2)(D) of the Act; (3) is or was involved in the smuggling of a
person or persons into the United States as described in section
212(a)(6)(E) of the Act; (4) is or was a practicing polygamist; (5) has
been convicted or admits committing acts that constitute a crime
involving moral turpitude other than a purely political offense, except
for certain petty offenses or offenses committed while the person was
less than 18 years of age as described in section 212(a)(2)(A)(ii) of
the Act; (6) has committed two or more offenses for which the applicant
was convicted and the aggregate sentence actually imposed was 5 years
or more, provided that, if an offense was committed outside the United
States, it was not a purely political offense; (7) has violated laws
relating to a controlled substance, except for simple possession of 30
grams or less of marijuana; (8) earns his or her income principally
from illegal gambling activities or has been convicted of two or more
gambling offenses; (9) has given false testimony for the purpose of
obtaining immigration benefits; (10) has been confined as a result of
conviction to a penal institution for an aggregate period of 180 days
or more; or (11) has been convicted of an aggravated felony.
The Service must conclude that a person who has been convicted of
an offense falling within section 101(f) of the Act lacks good moral
character. The Service may only look to the judicial records to
determine whether the person has been convicted of the crime, and may
not look behind the conviction to reach an independent determination
concerning guilt or innocence. Pablo v. INS, 72 F.3d 110, 113 (9th Cir.
1995); Gouveia v. INS, 980 F.2d 814, 817 (1st Cir. 1992); and Matter of
Roberts, Int. Dec. 3148 (BIA 1991).
Extenuating circumstances may be taken into account, however, if
the person has not been convicted of the offense in a court of law but
admits to the commission of an act or acts that could show a lack of
good moral character. The Board of Immigration Appeals (BIA) has ruled
that a person who admitted to having engaged in prostitution under
duress but had no prostitution convictions was not excludable as a
prostitute under section 212(a)(12) of the Act (currently section
212(a)(2)(D) of the Act) because she was involuntarily reduced to such
a state of mind that she was actually prevented from exercising free
will through the use of wrongful, oppressive threats, or unlawful
means. Matter of M-, 7 I&N Dec. 251 (BIA 1956). A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable, therefore, would not be precluded
from being found to be a person of good moral character if the person
has not been convicted for the
[[Page 13067]]
commission of the offense or offenses in a court of law.
This rule also provides that a person will be found to lack good
moral character, unless he or she establishes extenuating
circumstances, if he or she: (1) willfully failed or refused to support
dependents; or (2) committed unlawful acts that adversely reflect upon
his or her moral character, or was convicted or imprisoned for such
acts, although the acts do not require an automatic finding of lack of
good moral character.
Under this rule, primary evidence of good moral character is the
self-petitioner's affidavit. The affidavit should be accompanied by a
local police clearance or a state-issued criminal background check from
each locality or state in the United States in which the self-
petitioner resided for six or more months during the 3-year period
immediately preceding the filing of the self-petition. Self-petitioners
who lived outside the United States during this time should submit a
police clearance, criminal background check, or similar report issued
by the appropriate authority in each foreign country in which he or she
resided for six or more months during the 3-year period immediately
preceding the filing of the self-petition. If police clearances,
criminal background checks, or similar reports are not available for
some or all locations, the self-petitioner may include an explanation
and submit other evidence with his or her affidavit. The Service will
consider other credible evidence of good moral character, such as
affidavits from responsible persons who can knowledgeably attest to the
self-petitioner's good moral character.
The Service of the Department of State will conduct additional
record checks before issuing an immigrant visa or granting a self-
petitioner's application for adjustment of status. If the results of
these record checks disclose that the self-petitioner is no longer a
person of good moral character or that he or she has not been a period
of good moral character in the past, a pending self-petition will be
denied or the approval of a self-petition will be revoked.
Extreme Hardship
Section 40701 of the Crime Bill also requires a self-petitioning
spouse to show that his or her deportation would cause extreme hardship
to himself, herself, or his or her child. It similarly requires a self-
petitioning child to show that his or her deportation would cause
extreme hardship to himself or herself. The self-petitioner has the
burden of proof; a self-petition must be denied if the petitioner does
not show that his or here deportation would cause extreme hardship.
Hardship to persons other than the self-petitioner or the child of a
self-petitioning spouse, such as extended family members, cannot be the
basis for a self-petition under this rule.
The phrase ``extreme hardship'' is not defined in the Act, and
sections 40701 and 40703 of the Crime Bill provide no additional
guidelines for the interpretation of this requirement. The phrase
``extreme hardship'' has acquired a settled judicial and administrative
meaning, however, largely in the context of suspension of deportation
cases under section 244 of the Act.
It has been found that the personal deprivation contemplated in a
situation characterized by ``extreme hardship'' within the meaning of
section 244 of the Act is not a definable term of fixed and inflexible
content or meaning; it necessarily depends upon the facts and
circumstances peculiar to each case. Matter of Hwang, 10 I&N Dec. 448
(BIA 1964). The hardship requirement encompasses more than the mere
economic deprivation that might result from an alien's deportation for
the United States. Davidson v. INS, 558 F.2d 1361 (9th Cir. 1977); and
Matter of Sipus, 14 I&N Dec. 229 (BIA 1972). It has also been found
that the loss of a job and the concomitant financial loss incurred is
not synonymous with extreme hardship. Lee v. INS, 550 F.2d 554 (9th
Cir. 1977). Similarly, readjustment to life in the native country after
having spent a number of years in the United States is not the type of
hardship that has been characterized as extreme, since most aliens who
have spent time abroad suffer this kind of hardship. Matter of Uy, 11
I&N Dec. 159 (BIA 1965).
``Extreme hardship'' must be evaluated on a case-by-case basis
after a review of all the circumstances in the case. This rule,
therefore, does not include a list of ``factors'' that would
automatically establish an applicant's claim to extreme hardship. Each
self-petitioner is encouraged to cite and document all the reasons that
he or she believes that deportation would cause extreme hardship.
Some precedent suspension of deportation cases have discussed the
reasons why a particular applicant was found to have established that
his or her deportation would cause extreme hardship. These reasons
include the: (1) age of the person; (2) age and number of the person's
children and their ability to speak the native language and adjust to
life in another country; (3) serious illness of the person or his or
her child which necessitates medical attention not adequately available
in the foreign country; (4) person's inability to obtain adequate
employment in the foreign country; (5) person's and the person's
child's length of residence in the United States; (6) existence of
other family members who will be legally residing in the United States;
(7) irreparable harm that may arise as a result of disruption of
education opportunities; and (8) adverse psychological impact of
deportation.
In some self-petitioning cases, the circumstances surrounding
domestic abuse and the consequences of the abuse may cause the extreme
hardship. These self-petitioners may wish to cite and provide evidence
relating to some or all of the following areas, in addition to any
other basis for believing that deportation would cause extreme
hardship: (1) the nature and extent of the physical and psychological
consequences of the battering or extreme cruelty; (2) the impact of the
loss of access to the U.S. courts and criminal justice system
(including, not limited to, the ability to obtain and enforce: orders
of protection; criminal investigations and prosecutions; and family law
proceedings or court orders regarding child support, maintenance, child
custody and visitation); (3) the self-petitioner's and/or the self-
petitioner's child's need for social, medical, mental health, or other
supportive services which would not be available or reasonably
accessible in the foreign country; (4) the existence of laws, social
practices, or customs in the foreign country that would penalize or
ostracize the self-petitioner or the self-petitioner's child for having
been the victim of abuse, for leaving the abusive situation, or for
actions taken to stop the abuse; (5) the abuser's ability to travel to
the foreign country and the ability and willingness of foreign
authorities to protect the self-petitioner and/or the self-petitioner's
child from future abuse; and (6) the likelihood that the abuser's
family, friends, or others acting on behalf of the abuser in the
foreign country would physically or psychologically harm the self-
petitioner and/or the self-petitioner's child.
The Service will develop and provide further interpretive guidance
concerning the extreme hardship determination in self-petitioning cases
to the Service officers who will adjudicate these self-petitions. This
guidance is expected to be in the form of implementing directives,
training courses, the field handbook currently under development by the
Service, and other policy and procedural directives.
[[Page 13068]]
Good Faith Marriage
Section 40701 of the Crime Bill requires a self-petitioning spouse
to show that he or she entered into the marriage to the abusive citizen
or lawful permanent resident in good faith. This rule provides,
therefore, that a self-petition cannot be approved if the self-
petitioner married the abuser solely to obtain immigration benefits. A
self-petitioning spouse who is not subject to the limitations imposed
by IMFA need only provide a ``preponderance'' of evidence showing that
he or she married in good faith. Persons who are subject to the IMFA
restrictions may be required to meet a heavier burden of proof to
establish that a marriage was entered into in good faith, as discussed
previously in the section entitled ``Eligibility for Immigrant
Classification.''
The Act does not define a ``good-faith'' marriage or provide
guidelines for evaluating the bona fides of a marriage; however,
persons applying for immigration benefits based on a marriage are
generally required to establish that they entered into the marriage in
good faith, and a significant body of case law has developed concerning
the interpretation of this requirement. It has long been held that a
marriage that is entered into for the primary purpose of circumventing
the immigration laws, referred to as a fraudulent or sham marriage,
cannot be recognized as enabling a spouse to obtain immigration
benefits. Lutwak v. United States, 344 U.S. 604 (1953) and Matter of
Phillis, 15 I&N Dec. 385 (BIA 1975). A spousal petition will not be
denied, however, solely because the spouses are not living together and
the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332 (BIA
1980). The key factor in determining whether a person entered into a
marriage in good faith is whether he or she intended to establish a
life together with the spouse at the time of the marriage. The person's
conduct after marriage is relevant only to the extent that it bears
upon his or her subjective state of mind at the time of the marriage.
Separation from the other spouse, even shortly after the marriage took
place, does not prove, by itself, that a marriage was not entered into
in good faith. Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).
This rule allows the submission of a variety of evidence to show a
good-faith marriage. The self-petitioner should submit the best
evidence available. Evidence of good faith at the time of marriage may
include, but is not limited to, proof that one spouse has been listed
as the other's spouse on insurance policies, property leases, income
tax forms, or bank accounts; and testimony or other evidence regarding
courtship, wedding ceremony, shared residence and experiences. Matter
of Laureano, supra. Other types of readily available evidence might
include the birth certificates of children born to the abuser and the
spouse; police, medical, or court documents providing information about
the relationship; and affidavits of persons with personal knowledge of
the relationship.
Derivative Child Included in the Self-Petition
Section 40701 of the Crime Bill allows any child of a self-
petitioning spouse to be derivatively included in the self-petition, if
the child has not been classified as an immigrant based on his or her
own self-petition. This rule allows a derivative child who has been
included in a parent's petition to later file a self-petition, provided
the child meets the self-petitioning requirements. It also allows a
child who has been classified as an immigrant based on a petition filed
by the abuser or another relative to be derivatively included in a
parent's self-petition; including the child in the self-petition will
not affect the validity of the petition submitted by the abuser or
another relative.
No separate petition is necessary for derivative classification,
and the child is not required to have been the victim of abuse. The
derivative child also does not need to have lived in the United States
or to otherwise satisfy the criteria for filing a self-petition. He or
she, however, must meet the requirements for immigrant visa issuance
abroad or adjustment of status in the United States. An eligible child,
including a child born after the self-petition was approved, may be
added to a self-petitioning spouse's petition when the self-petitioner
applies for an immigrant visa abroad or adjustment of status in the
United States. A new petition will not be required.
This rule further specifies that a derivative child need not be the
child of the abuser, but must qualify as the self-petitioning spouse's
child under the definition of ``child'' contained in section 101(b)(1)
of the Act. The statutory definition includes certain children born in
or out of wedlock, and certain legitimated, adopted, and stepchildren.
It also requires a child to be unmarried and less than 21 years old.
This rule requires a derivative child to continue to be a ``child''
until he or she becomes a lawful permanent resident based on the
derivative classification. A derivative son or daughter who is married
or more than 21 years old will not be issued an immigrant visa or
granted adjustment of status as a derivative child.
Since derivative status is based solely on the relationship to the
principal self-petitioner, the rule also provides that the derivative
child can be granted lawful permanent residence only if the child is
accompanying or following-to-join the self-petitioner. No derivative
benefit can be granted if the principal self-petitioner does not become
a lawful permanent resident.
This rule does not require the submission of documentary evidence
of the derivative relationship with the self-petition. Such documents
must be submitted, however, when the child applies for an immigrant
visa abroad or adjustment of status to that of a lawful permanent
resident of the United States based on the derivative relationship.
Primary evidence of a parent-child relationship has been previously
discussed under ``Child of a Citizen or Lawful Permanent Resident.''
The Service's regulations at 8 CFR 204.1 and 204.2 provide additional
information concerning primary or secondary supporting documentation of
a parent-child relationship. Other types of evidence not specifically
discussed in this rule or the Service regulations may also be
submitted; the Service will consider any relevant credible evidence.
Evidence in General
In accordance with the provisions of section 40701 of the Crime
Bill, this rule provides that the Service will consider all credible
evidence submitted with the application before reaching a decision. It
also states that the Service will determine what evidence is credible
and what weight to give to this evidence.
Generally, more weight will be given to primary evidence and
evidence provided in court documents, medical reports, police reports,
and other official documents. Self-petitioners, therefore, are strongly
encouraged to submit this type of evidence whenever possible. Self-
petitioners who submit affidavits are urged, but not required, to
provide affidavits from more than one person. Other forms of
documentary evidence may also be submitted, including evidence that has
not been discussed in this rule or identified in the Service
regulations.
The Service's regulations at 8 CFR 103.2 and 204.1(f) provide
detailed information about the requirements applicable to supporting
documentation. An ordinary legible photocopy of any supporting document
may be submitted with a petition, although the Service reserves the
right to require presentation of the original
[[Page 13069]]
document. An original document requested by the Service will be
returned to the petitioner when it is no longer needed. Original
documents submitted by the petitioner but not requested by the Service
will remain a part of the record. Each foreign language document must
be accompanied by an English translation that has been certified by a
competent translator.
Proper Filing and Priority Dates
This rule requires self-petitioners to complete Form I-360,
Petition for Amerasian, Widow(er) or Special Immigrant. As directed in
8 CFR 103.2(a)(2), the person filing the self-petition must sign the
Form I-360. A parent or guardian, however, may sign the petition for a
child who is less than 14 years of age. Any self-petitioner may be
represented by an attorney or accredited representative as described in
8 CFR 103.2(a)(3), if he or she so chooses.
Each self-petition must be accompanied by the fee required by 8 CFR
103.7(b)(1). A self-petitioner who is unable to pay the prescribed fee
may request a fee waiver under the provisions of 8 CFR 103.7(c). The
self-petition should also be accompanied by the documentary evidence
specified in this rule.
Under the provisions of this rule, a self-petition filed
concurrently with a Form I-485, Application to Register Permanent
Residence or Adjust Status, may be filed at the office having
jurisdiction over the adjustment of status application. Other self-
petitions should be filed at the INS Service Center having jurisdiction
over the self-petitioner's place of residence as described in the
instructions to Form I-360. Since section 40701 of the Crime Bill
requires all self-petitioners to be residing in the United States when
the self-petition is filed, a self-petition cannot be filed at a United
States consulate or embassy abroad. A self-petition also cannot be
filed at a Service office overseas. Consular officials and Service
officers overseas have not been delegated the authority to approve a
self-petition.
In accordance with standard procedures, a self-petition received in
a Service office will be stamped to show the time and date of actual
receipt. It will be regarded as properly filed on that date, provided
it is properly signed and executed, the required fee is attached or a
fee waiver is granted, and it otherwise complies with the provisions of
8 CFR 103.2. This rule provides that the priority date will be the date
the self-petition is properly filed. A self-petitioner who has been the
beneficiary of a visa petition filed by the abuser to accord the self-
petitioner immigrant classification as his or her spouse or child,
however, will be allowed to transfer the visa petition priority date to
the self-petition. The earlier priority date may be assigned without
regard to the current validity of the visa petition. The burden of
proof to establish the filing of the visa petition lies with the self-
petitioner, although the Service will attempt to verify a claimed
filing through a search of the Service's computerized records or other
records deemed appropriate by the adjudicating officer.
Decision
If the preliminary decision on a properly filed self-petition is
adverse to the self-petitioner, the self-petitioner will be provided
with written notice of this fact and offered an opportunity to present
additional information or arguments before a final decision is
rendered. If the preliminary decision is based on derogatory
information of which the self-petitioner is unaware, the self-
petitioner will also be offered an opportunity to rebut the derogatory
information in accordance with the provisions of 8 CFR 103.2(b)(16).
Each self-petitioner will be sent a written notice of the final
decision on his or her self-petition. If the petition is denied, he or
she will be informed in writing of the basis for the denial and of the
right to appeal. This rule allows an adverse decision on a self-
petition to be appealed to the Associate Commissioner for Examinations
in accordance with the provisions of 8 CFR 103.3.
Eligibility for Immigrant Visa Issuance or Adjustment of Status
Approval of a self-petition does not guarantee immediate
eligibility for immigrant visa issuance or adjustment of status to that
of a lawful permanent resident of the United States. The beneficiary of
an approved self-petition must meet several additional requirements
before he or she will be found eligible for lawful permanent residence
in the United States.
Neither the Act nor this rule limits the overall number of self-
petitions that may be accepted and approved by the Service. Some
persons who are the beneficiaries of approved self-petitions, however,
will be forced to delay filing their applications for immigrant visa
issuance or adjustment of status because sections 201 and 202 of the
Act place certain limits on the number of qualified persons who may be
granted lawful permanent residence during any single year. Self-
petitioners who are subject to these limitations are encouraged to file
the self-petition and establish the earliest possible priority date,
since the available immigrant visa numbers are allocated to qualified
immigrant visa applicants and qualified adjustment of status applicants
strictly in priority date order.
Under the provisions of the Crime Bill, any self-petitioner who
qualifies for immigrant classification as the spouse or child of an
abusive citizen of the Untied States is regarded as an immediate
relative of a U.S. citizen under section 201(b) of the Act and is not
subject to direct numerical limitations. A qualified derivative child
of a self-petitioning spouse of an abusive citizen of the United States
is also considered to be an immediate relative under section 201(b) of
the Act and is also exempted from these limitations. These self-
petitioners may apply for immigrant visa issuance abroad or adjustment
of status to that of a lawful permanent resident of the United States
without regard to numerical limitations.
A self-petitioner who is the spouse or child of an abusive
permanent resident of the United States, however, is subject to
immigrant visa number limitations, as are the qualified derivative
children of spouses of abusive permanent residents. These self-
petitioners and their derivative children are not eligible to apply for
immigrant visa issuance or adjustment of status until their immigrant
visa numbers have become immediately available. Visa numbers for these
self-petitioners and their derivative children are considered
immediately available only when the Department of State Bureau of
Consular Affairs Visa Office Bulletin shows the priority date for the
applicant's country of birth under the family-sponsored 2A second
preference classification as ``current'' or lists a date that is
earlier than the self-petitioner's priority date.
In addition to meeting requirements concerning visa number
availability, a self-petitioner who is applying for an immigrant visa
at a U.S. consulate or embassy abroad must prove that he or she is not
included in any of the classes of persons who, by law, cannot be
admitted to the United States, or that any basis for inadmissibility
has been waived. A person seeking immigrant visa issuance abroad may
also be subject to the provisions of section 212(o) of the Act. This
provision requires a person who was not in lawful nonimmigrant status
on the day he or she last left the United States to remain outside the
country for at least 90 days before obtaining an immigrant visa. An
immigrant may lawfully travel to the
[[Page 13070]]
United States immediately after the visa is issued. A qualified
immigrant visa holder becomes a lawful permanent resident upon
admission to the United States.
A self-petitioner who is seeking immigrant visa issuance abroad
will be contacted by the Department of State's National Visa Center
(NVC) when that office has received the approved self-petition from the
Service and an immigrant visa number is available. Immigrant visa
applicants should follow the instructions provided by NVC and the U.S.
consulate or embassy processing their requests. Persons wishing further
information about immigrant visa issuance abroad should contact the
Department of State or a United States embassy or consulate abroad.
The Act also allows certain persons who are physically present in
the United States to adjust status to that of a lawful permanent
resident of the United States. Like immigrant visa applicants,
adjustment of status applicants must prove that they are eligible for
immigrant classification. Each applicant must also be exempt from
immigrant visa number limitations or show that an immigrant visa number
is immediately available for him or her. An applicant must further
prove that he or she is not included in any of the classes of persons
who, by law, cannot be admitted to the United States, or that any basis
for inadmissibility has been waived. Persons seeking adjustment of
status must also meet the applicable requirements of section 245 of the
Act. A qualified adjustment applicant becomes a lawful permanent
resident upon approval of the adjustment of status application.
Section 40701 of the Crime Bill does not provide adjustment of
status benefits. Self-petitioners, however, may benefit from certain
other provisions of the Act. One such provision is a recently enacted
law that temporarily allows many previously ineligible persons to seek
adjustment of status in the United States. This law, section 506(b) of
the Department of Commerce, Justice, State, the Judiciary and Related
Agencies Appropriations Act, 1995, Public Law 103-317, was enacted
August 26, 1994. It lifts certain restrictions on adjustment of status
under section 245 of the Act on applications granted before October 1,
1997. Persons seeking the adjustment of status benefits of Public Law
103-317 may be subject to a financial penalty, since the law requires
most persons seeking adjustment of status under this provision to pay
an additional sum in excess of the standard adjustment of status filing
fee. Additional information concerning adjustment of status under
Public Law 103-317 may be obtained by requesting Supplement A to Form
I-485 from a local Service office.
Certain restrictions on adjustment of status have not been waived
by section 40701 of the Crime Bill and cannot be waived under Public
Law 103-317. These restrictions include those imposed by section 245(d)
of the Act, which prohibit the adjustment of status of a person who is
a conditional resident under section 216 or 216A of the Act. The
adjustment of status of a person last admitted to the United States as
a K-1 finance(e) is also barred, unless the person is seeking
adjustment as a result of the marriage to the United States citizen who
filed the finance(e) petition. Section 245(d) of the Act similarly
prohibits the adjustment of status of a person who was last admitted as
the K-2 child of a finance(e) parent, unless the person is seeking
adjustment as a result of his or her parent's marriage to the citizen
who filed the finance(e) petition. A self-petitioner who last entered
in K-1 or K-2 nonimmigrant status would be subject to these
restrictions, as would his or her derivative children who last entered
in K-2 nonimmigrant status, unless the abuser is also the citizen who
had filed the finance(e) petition. The statutory language of section
245(d) of the Act does not preclude a conditional resident, a person
who last entered the United States with a finance(e) visa, or a person
who last entered the country as a dependent child of a finance(e) from
filing a self-petition and seeking immigrant visa issuance abroad.
An application for adjustment of status may be filed concurrently
with the self-petition, if the self-petitioner is exempt from immigrant
visa number limitations or if an immigrant visa number would be
immediately available if the self-petition was approved. Other self-
petitioners who wish to adjust status in the United States may file the
self-petition separately and submit the adjustment of status
application when their immigrant visa numbers become available. Self-
petitioners who would like more information about the requirements for
adjustment of status in the United States may request Form I-485 from
the service office serving their local area.
Conditions on Residency Under Section 216 of the Act
Section 216 of the Act was enacted as part of IMFA to detect and
deter immigration-related marriage fraud. It imposes conditions on the
lawful permanent resident status of certain persons who obtain
residency through marriage. A spouse or child may be subject to these
restrictions if he or she becomes a lawful permanent resident based on
a relationship created by a marriage entered into less than 2 years
before residency is granted. The conditions on residency under section
216 of the Act may be removed only upon fulfillment of certain
requirements. A conditional resident who does not file a joint petition
with the citizen or permanent resident spouse during the 90 days prior
to the second anniversary of the date residency was granted may have
residency status terminated. Section 216 of the Act also provides three
waivers of the joint petitioning requirement. One waiver exempts a
conditional resident from filing a joint petition if he or she has been
battered by, or subjected to extreme cruelty committed by, the citizen
or lawful permanent resident; or if his or her child has been battered
by, or subjected to extreme cruelty committed by, the citizen or lawful
permanent resident. The Service has determined that no useful purpose
would be served by imposing the conditional residency requirements of
section 216 of the Act on any self-petitioner; all self-petitioners
would necessarily be eligible for waivers of the joint petitioning
requirement. This rule provides, therefore, that the conditional
residence requirements of section 216 of the Act will not apply to a
person who obtains lawful permanent resident status based on an
approved self-petition, regardless of the date of the marriage.
Employment Authorization
Section 40701 of the Crime Bill does not direct the Service to
provide employment authorization based solely on the filing or approval
of a self-petition. A self-petitioner, however, may be eligible to
apply for employment authorization under the existing provisions of 8
CFR 274a.12. Qualified applicants who wish to request employment
authorization should complete and file Form I-765, Application for
Employment Authorization, according to the instructions provided with
the form. A self-petitioner who substantiates that he or she is unable
to pay the Form I-765 application fee may be granted a fee waiver in
accordance with the provisions of 8 CFR 103.7(c).
Many self-petitioners will qualify for employment authorization
under 8 CFR 274a.12(c)(9). This provision allows a person who has
properly filed an adjustment of status application under section 245 of
the Act to request
[[Page 13071]]
employment authorization while the adjustment application is pending
before the Service.
Most other self-petitioners will be eligible to request voluntary
departure prior to or after a deportation hearing for the reasons set
forth in 8 CFR 242.5(a)(2) (v), (vi), or (viii), and may qualify for
employment authorization based on the grant of voluntary departure.
Voluntary departure may be granted under 8 CFR 242.5(a)(2)(v) to a
person who lost his or her nonimmigrant student or exchange visitor
status (F-1, F-2, J-1, or J-2 nonimmigrant classification) solely
because a private bill had been introduced in his or her behalf. It may
be granted under 8 CFR 242.5(a)(2)(vi) to a person who is admissible to
the United States as an immigrant, and: (1) who is an immediate
relative of a U.S. citizen; or (2) is otherwise exempt from the
numerical limitation on immigrant visa issuance; or (3) has a priority
date for an immigrant visa not more than 60 days later than the date
shown in the latest Visa Office Bulletin and has applied for an
immigrant visa at a United States Consulate which has accepted
jurisdiction over the case; or (4) who is the beneficiary of an
employment-based petition with a priority date earlier than August 9,
1978, and who meets certain other requirements outlined in 8 CFR
242.5(a)(2)(vi) (D) or (E). Also, voluntary departure may be granted
under 8 CFR 242.5(a)(2)(viii) to a person in whose case the district
director has determined there are compelling factors warranting a grant
of voluntary departure. A person who has been granted voluntary
departure for the reasons set forth in 8 CFR 242.5(a)(2) (v), (vi), or
(viii) may be granted permission under 8 CFR 274a.12(c)(12) to be
employed for the period of time prior to the date set for voluntary
departure, if the person shows an economic need to work. Extensions of
voluntary departure and employment authorization may also be requested.
Requests for voluntary departure under 8 CFR 242.5(a)(2)(v), (vi), or
(viii) may be made to the local Service office having jurisdiction over
the applicant's place of residence. There is no application form or fee
for requesting voluntary departure for these reasons, although a person
requesting employment authorization on the basis of the voluntary
departure grant will be required to file Form I-765 and to pay the Form
I-765 application fee or to establish eligibility for a fee waiver.
A person who has been placed in deferred action status, an act of
administrative convenience to the Government that assigns a lower
priority to the alien's removal from the United States, may also
request employment authorization under 8 CFR 274a.12(c)(14) if the
person shows an economic need to work. There is no application process
or fee for placement in deferred action status, although a person
requesting employment authorization on the basis of deferred action
placement will be required to file Form I-765 and to pay the Form I-765
application fee or to establish eligibility for a fee waiver.
Furthermore, a self-petitioner would not be precluded from
requesting the employment authorization benefits of any other provision
of 8 CFR 274a.12 under which he or she may qualify.
Other Regulatory Changes
In addition to making regulatory changes necessary to implement the
provisions of section 40701 of the Crime Bill, this rule makes
necessary grammatical and format changes to ensure consistency and
clarity. It also makes technical changes by: (1) amending 8 CFR
103.1(f)(3)(iii) to update regulatory and statutory references; (2)
amending 8 CFR 103.1(f)(3)(iii) to eliminate provisions concerning the
appeal of a denial of a petition for a Replenishment Agricultural
Worker (RAW) under part 210a of the Act, since that program expired at
the end of fiscal year 1993 without allowing any such petitions to be
filed; (3) revising the headings of 8 CFR 204.1 and 8 CFR 204.2 to more
accurately reflect the contents of the sections; (4) correcting a
typographical error by replacing ``Form I-30'' with ``Form I-130'' in 8
CFR 204.1(a); (5) removing 8 CFR 204.2(d), which discussed a program
created by section 112 of the Immigration Act of 1990 to provide
additional visa numbers to spouses and children of legalized aliens
that ended September 30, 1994; and (6) amending 8 CFR 205.1 to reflect
the requirements of 8 CFR 103.2(a)(7)(ii), which provides an automatic
revocation of an approved petition when the remitter fails to pay the
filing fee and associated service charge after the check or other
financial instrument used to pay the filing fee is returned as not
payable.
Family Well-Being
This regulation will enhance family well-being by allowing
qualified family members of citizens and lawful permanent residents to
self-petition for immigrant classification if they are living in this
country. These family members were formerly precluded from obtaining
this benefit because the abuser refused to file the necessary relative
visa petition.
The Service's implementation of this rule as an interim rule, with
provision for post-promulgation public comment, is based on the ``good
cause'' exceptions found at 5 U.S.C. 553 (b)(3)(B) and (d)(3).
Methodist Hospital of Sacramento, et al., v. Shalala, 38 F.3d 1225
(D.C. Cir. 1994). The reasons and necessity for immediate
implementation of this interim rule are as follows: The changes to the
Act made by section 40701 of the Crime Bill became effective on January
1, 1995. Immediate implementation of this rule will allow a qualified
spouse or child of an abusive citizen or lawful permanent resident to
immediately self-petition for immigrant classification. Prompt
implementation will also allow a spouse or child who is filing based on
the relationship to an abusive lawful permanent resident of the United
States to establish a more favorable place on the immigrant visa number
waiting list. Qualified self-petitioners are all residing in this
country and are persons of good moral character. They have been
prevented from obtaining immigrant classification in the past solely
because their abusive spouse or parent withdrew or refused to file the
necessary immigrant visa petition for them.
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 the rule
will not have a significant economic impact on a substantial number of
small entities because of the following factors. By permitting certain
spouses and children to self-petition for immigrant classification, the
rule will allow some individuals residing in the United States to be
classified as immigrants based on the relationship to an abusive
citizen or lawful permanent resident spouse or child. It will not
affect small entities.
Executive Order 12866
This rule is not 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, and the Office of Management and Budget has waived its
review process under section 6(a)(3)(A).
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
[[Page 13072]]
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.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been cleared by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Forms, Freedom of information, Privacy,
Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 204
Administrative practice and procedures, Aliens, Employment,
Immigration, Petitions.
8 CFR Part 205
Administrative practice and procedures, Aliens, Immigration,
Petitions.
8 CFR Part 216
Administrative practice and procedures, Aliens, Nonimmigrants,
Passports and visas.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 1487,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
Sec. 103.1 [Amended]
2. Section 103.1 is amended by:
a. Revising the reference in paragraph (f)(3)(iii)(C) to
``Sec. 245.2 (a)(4) and (e) of this chapter'' to read ``section 103 of
the Act of October 28, 1977'';
b. Revising the reference in paragraph (f)(3)(iii)(K) to
``Sec. 223.1 of this chapter'' to read ``8 CFR part 223'';
c. Revising the reference in paragraph (f)(3)(iii)(L) to
``Sec. 223a.4 of this chapter'' to read ``8 CFR part 223'';
d. Revising the reference in paragraph (f)(3)(iii)(X) to
``Sec. 204.1(b) of this chapter'' to read ``8 CFR 204.3'';
e. Revising the reference in paragraph (f)(3)(iii)(Y) to
``Sec. 204.1(b)(3) of this chapter'' to read ``8 CFR 204.3'';
f. Revising the reference in paragraph (f)(3)(iii)(FF) to ``as
permanent resident under Sec. 245.6 of this chapter'' to read ``of
certain Cuban and Haitian nationals under section 202 of the
Immigration Reform and Control Act of 1986''; and
g. Removing paragraph (f)(3)(iii)(GG).
3. Section 103.1 is amended by adding a new paragraph
(f)(3)(iii)(GG), to read as follows:
Sec. 103.1 Delegations of authority.
* * * * *
(f) * * *
(3) * * *
(iii) * * *
(GG) A self-petition filed by a spouse or child based on the
relationship to an abusive citizen or lawful permanent resident of the
United States for classification under section 201(b)(2)(A)(i) of the
Act or section 203(a)(2)(A) of the Act;
* * * * *
4. Section 103.2 is amended by adding a new paragraph (b)(2)(iii),
to read as follows:
Sec. 103.2 Applications, petitions, and other documents.
* * * * *
(b) * * *
(2) * * *
(iii) Evidence provided with a self-petition filed by a spouse or
child of abusive citizen or resident. The Service will consider any
credible evidence relevant to a self-petition filed by a qualified
spouse or child of an abusive citizen or lawful permanent resident
under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not
required to, demonstrate that preferred primary or secondary evidence
is unavailable. The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discretion of
the Service.
* * * * *
5. Section 103.2 is amended by revising the heading of paragraph
(b)(17) and by adding three new sentences at the end of paragraph
(b)(17), to read as follows:
Sec. 103.2 Applications, petitions, and other documents.
* * * * *
(b) * * *
(17) Verifying claimed citizenship or permanent resident status. *
* * If a self-petitioner filing under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is
unable to present primary or secondary evidence of the abuser's status,
the Service will attempt to electronically verify the abuser's
citizenship or immigration status from information contained in Service
computerized records. Other Service records may also be reviewed at the
discretion of the adjudicating officer. If the Service is unable to
identify a record as relating to the abuser, or the record does not
establish the abuser's immigration or citizenship status, the self-
petition will be adjudicated based on the information submitted by the
self-petitioner.
* * * * *
PART 204--IMMIGRANT PETITIONS
6. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 8 CFR part 2.
7. Section 204.1 is amended by revising the section heading, and by
revising paragraph (a), to read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
(a) Types of petitions. Petitions may be filed for an alien's
classification as an immediate relative under section 201(b) of the Act
or as a preference immigrant under section 203(a) of the Act based on a
qualifying relationship to a citizen or lawful permanent resident of
the United States, as follows:
(1) A citizen or lawful permanent resident of the United States
petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act
for a qualifying relative's classification as an immediate relative
under section 201(b) of the Act or as a preference immigrant under
section 203(a) of the Act must file a Form I-130, Petition for Alien
Relative. These petitions are described in Sec. 204.2;
(2) A widow or widower of a United States citizen self-petitioning
under section 204(a)(1)(A)(ii) of the Act as an immediate relative
under section 201(b) of the Act must file a Form I-360, Petition for
Amerasian, Widow, or Special Immigrant. These petitions are described
in Sec. 204.2;
(3) A spouse or child of an abusive citizen or lawful permanent
resident of the United States self-petitioning under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act for classification as an immediate
relative under section 201(b) of the Act or as a preference immigrant
under section 203(a) of the Act must file a Form I-360, Petition for
Amerasian,
[[Page 13073]]
Widow, or Special Immigrant. These petitions are described in
Sec. 204.2;
(4) A citizen of the United States seeking advanced processing of
an orphan petition must file Form I-600A, Application for Advanced
Processing of Orphan Petition. A citizen of the United States
petitioning under section 204(a)(1)(A)(i) of the Act for classification
of an orphan described in section 101(b)(1)(F) of the Act as an
immediate relative under section 201(b) of the Act must file Form I-
600, Petition to Classify Orphan as an Immediate Relative. These
applications and petitions are described in Sec. 204.3; and
(5) Any person filing a petition under section 204(f) of the Act
as, or on behalf of, an Amerasian for classification as an immediate
relative under section 201(b) of the Act or as a preference immigrant
under section 203(a)(1) or 203(a)(3) of the Act must file a Form I-360,
Petition for Amerasian, Widow, or Special Immigrant. These petitions
are described in Sec. 204.4.
* * * * *
9. Section 204.1 is amended by revising paragraph (e)(1), to read
as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(e) * * *
(1) Petitioner or self-petitioner residing in the United States.
The petition or self-petition must be filed with the Service office
having jurisdiction over the place where the petitioner or self-
petitioner is residing. When the petition or self-petition is
accompanied by an application for adjustment of status, the petition or
self-petition may be filed with the Service office having jurisdiction
over the beneficiary's or self-petitioner's place of residence.
* * * * *
9. Section 204.1 is amended by adding two new sentences at the end
of paragraph (e)(2), to read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(e) * * *
(2) * * * An overseas Service officer may not accept or approve a
self-petition filed by the spouse or child of an abusive citizen or
lawful permanent resident of the United States under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with
the Service office in the United States having jurisdiction over the
self-petitioner's place of residence in the United States.
* * * * *
10. Section 204.1 is amended by adding two new sentences at the end
of paragraph (e)(3), to read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(e) * * *
(3) * * * A consular official may not accept or approve a self-
petition filed by the spouse or child of an abusive citizen or lawful
permanent resident of the United States under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with
the Service office in the United States having jurisdiction over the
self-petitioner's place of residence in the United States.
* * * * *
11. Section 204.1 is amended by adding three new sentences at the
end of paragraph (f)(1), to read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(f) * * *
(1) * * * The Service will consider any credible evidence relevant
to a self-petition filed by a qualified spouse or child of an abusive
citizen or lawful permanent resident under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act.
The self-petitioner may, but is not required to, demonstrate that
preferred primary or secondary evidence is unavailable. The
determination of what evidence is credible and the weight to be given
that evidence shall be within the sole discretion of the Service.
* * * * *
12. Section 204.1 is amended by adding a new paragraph (g)(3), to
read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(g) * * *
(3) Evidence submitted with a self-petition. If a self-petitioner
filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present
primary or secondary evidence of the abuser's status, the Service will
attempt to electronically verify the abuser's citizenship or
immigration status from information contained in Service computerized
records. Other Service records may also be reviewed at the discretion
of the adjudicating officer. If the Service is unable to identify a
record as relating to the abuser or the record does not establish the
abuser's immigration or citizenship status, the self-petition will be
adjudicated based on the information submitted by the self-petitioner.
* * * * *
13. Section 204.2 is amended by:
a. Revising the section heading;
b. Removing paragraph (d);
c. Redesignating paragraph (c) as paragraph (d); and by
d. Adding a new paragraph (c), to read as follows:
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
* * * * *
(c) Self-petition by spouse of abusive citizen or lawful permanent
resident. (1) Eligibility. (i) Basic eligibility requirements. A spouse
may file a self-petition under section 204(a)(1)(A)(iii) or
204(a)(1)(B)(ii) of the Act for his or her classification as an
immediate relative or as a preference immigrant if he or she:
(A) Is the spouse of a citizen or lawful permanent resident of the
United States;
(B) Is eligible for immigrant classification under section
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful
permanent resident spouse;
(E) Has been battered by, or has been the subject of extreme
cruelty perpetrated by, the citizen or lawful permanent resident during
the marriage; or is that parent of a child who has been battered by, or
has been the subject of extreme cruelty perpetrated by, the citizen or
lawful permanent resident during the marriage;
(F) Is a person of good moral character;
(G) Is a person whose deportation would result in extreme hardship
to himself, herself, or his or her child; and
(H) Entered into the marriage to the citizen or lawful permanent
resident in good faith.
(ii) Legal status of the marriage. The self-petitioning spouse must
be legally married to the abuser when the petition is properly filed
with the Service. A spousal self-petition must be denied if the
marriage to the abuser legally ended through annulment, death, or
divorce before that time. After the self-petition has been properly
filed, the legal termination of the marriage will have no effect on the
decision made on the self-
[[Page 13074]]
petition. The self-petitioner's remarriage, however, will be a basis
for the denial of a pending self-petition.
(iii) Citizenship or immigration status of the abuser. The abusive
spouse must be a citizen of the United States or a lawful permanent
resident of the United States when the petition is filed and when it is
approved. Changes in the abuser's citizenship or lawful permanent
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an
abusive lawful permanent resident spouse will not be automatically
upgraded to immediate relative status. The self-petitioner would not be
precluded, however, from filing a new self-petition for immediate
relative classification after the abuser's naturalization, provided the
self-petitioner continues to meet the self-petitioning requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is
required to comply with the provisions of section 204(c) of the Act,
section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition
is filed. The self-petitioner is not required to be living with the
abuser when the petition is filed, but he or she must have resided with
the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was battered by or was the subject of extreme cruelty''
includes, but is not limited to, being the victim of any act or
threatened act of violence, including any forceful detention, which
results or threatens to result in physical or mental injury.
Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim is a minor), or forced prostitution
shall be considered acts of violence. Other abusive actions may also be
acts of violence under certain circumstances, including acts that, in
and of themselves, may not initially appear violent but that are a part
of an overall pattern of violence. The qualifying abuse must have been
committed by the citizen or lawful permanent resident spouse, must have
been perpetrated against the self-petitioner or the self-petitioner's
child, and must have taken place during the self-petitioner's marriage
to the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable under section 212(a) of the Act
would not be precluded from being found to be a person of good moral
character, provided the person has not been convicted for the
commission of the offense or offenses in a court of law. A self-
petitioner will also be found to lack good moral character, unless he
or she establishes extenuating circumstances, if he or she willfully
failed or refused to support dependents; or committed unlawful acts
that adversely reflect upon his or her moral character, or was
convicted or imprisoned for such acts, although the acts do not require
an automatic finding of lack of good moral character. A self-
petitioner's claim of good moral character will be evaluated on a case-
by-case basis, taking into account the provisions of section 101(f) of
the Act and the standards of the average citizen in the community. If
the results of record checks conducted prior to the issuance of an
immigrant visa or approval of an application for adjustment of status
disclose that the self-petitioner is no longer a person of good moral
character or that he or she has not been a person of good moral
character in the past, a pending self-petition will be denied or the
approval of a self-petition will be revoked.
(viii) Extreme hardship. The Service will consider all credible
evidence of extreme hardship submitted with a self-petition, including
evidence of hardship arising from circumstances surrounding the abuse.
The extreme hardship claim will be evaluated on a case-by-case basis
after a review of the evidence in the case. Self-petitioners are
encouraged to cite and document all applicable factors, since there is
no guarantee that a particular reason or reasons will result in a
finding that deportation would cause extreme hardship. Hardship to
persons other than the self-petitioner or the self-petitioner's child
cannot be considered in determining whether a self-petitioning spouse's
deportation would cause extreme hardship.
(ix) Good faith marriage. A spousal self-petition cannot be
approved if the self-petitioner entered into the marriage to the abuser
for the primary purpose of circumventing the immigration laws. A self-
petition will not be denied, however, solely because the spouses are
not living together and the marriage is no longer viable.
(2) Evidence for a spousal self-petition. (i) General. Self-
petitioners are encouraged to submit primary evidence whenever
possible. The Service will consider, however, any credible evidence
relevant to the petition. The determination of what evidence is
credible and the weight to be given that evidence shall be within the
sole discretion of the Service.
(ii) Relationship. A self-petition filed by a spouse must be
accompanied by evidence of citizenship of the United States citizen or
proof of the immigration status of the lawful permanent resident
abuser. It must also be accompanied by evidence of the relationship.
Primary evidence of a marital relationship is a marriage certificate
issued by civil authorities, and proof of the termination of all prior
marriages, if any, of both the self-petitioner and the abuser. If the
self-petition is based on a claim that the self-petitioner's child was
battered or subjected to extreme cruelty committed by the citizen or
lawful permanent resident spouse, the self-petition should also be
accompanied by the child's birth certificate or other evidence showing
the relationship between the self-petitioner and the abused child.
(iii) Residence. One or more documents may be submitted showing
that the self-petitioner and the abuser have resided together in the
United States. One or more documents may also be submitted showing that
the self-petitioner is residing in the United States when the self-
petition is filed. Employment records, utility receipts, school
records, hospital or medical records, birth certificates of children
born in the United States, deeds, mortgages, rental records, insurance
policies, affidavits or any other type of relevant credible evidence of
residency may be submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to,
reports and affidavits from police, judges and other court officials,
medical personnel, school officials, clergy, social workers, and other
social service agency personnel. Persons who have obtained an order of
protection against the abuser or have taken other legal steps to end
the abuse are strongly encouraged to submit copies of the relating
legal documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. Other forms of credible
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to
[[Page 13075]]
establish a pattern of abuse and violence and to support a claim that
qualifying abuse also occurred.
(v) Good moral character. Primary evidence of the self-petitioner's
good moral character is the self-petitioner's affidavit. The affidavit
should be accompanied by a local police clearance or a state-issued
criminal background check from each locality or state in the United
States in which the self-petitioner has resided for six or more months
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during
this time should submit a police clearance, criminal background check,
or similar report issued by the appropriate authority in each foreign
country in which he or she resided for six or more months during the 3-
year period immediately preceding the filing of the self-petition. If
police clearances, criminal background checks, or similar reports are
not available for some or all locations, the self-petitioner may
include an explanation and submit other evidence with his or her
affidavit. The Service will consider other credible evidence of good
moral character, such as affidavits from responsible persons who can
knowledgeably attest to the self-petitioner's good moral character.
(vi) Extreme hardship. Evidence of extreme hardship may include
affidavits, birth certificates of children, medical reports, protection
orders and other court documents, police reports, and other relevant
credible evidence.
(vii) Good faith marriage. Evidence of good faith at the time of
marriage may include, but is not limited to, proof that one spouse has
been listed as the other's spouse on insurance policies, property
leases, income tax forms, or bank accounts; and testimony or other
evidence regarding courtship, wedding ceremony, shared residence and
experiences. Other types of readily available evidence might include
the birth certificates of children born to the abuser and the spouse;
police, medical, or court documents providing information about the
relationship; and affidavits of persons with personal knowledge of the
relationship. All credible relevant evidence will be considered.
(3) Decision on and disposition of the petition. (i) Petition
approved. If the self-petitioning spouse will apply for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the self-petitioner will apply for an
immigrant visa abroad, the approved self-petition will be forwarded to
the Department of State's National Visa Center.
(ii) Notice of intent to deny. If the preliminary decision on a
properly filed self-petition is adverse to the self-petitioner, the
self-petitioner will be provided with written notice of this fact and
offered an opportunity to present additional information or arguments
before a final decision is rendered. If the adverse preliminary
decision is based on derogatory information of which the self-
petitioner is unaware, the self-petitioner will also be offered an
opportunity to rebut the derogatory information in accordance with the
provisions of 8 CFR 103.2(b)(16).
(iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial
and of the right to appeal the decision.
(4) Derivative beneficiaries. A child accompanying or following-to-
join the self-petitioning spouse may be accorded the same preference
and priority date as the self-petitioner without the necessity of a
separate petition, if the child has not been classified as an immigrant
based on his or her own self-petition. A derivative child who had been
included in a parent's self-petition may later file a self-petition,
provided the child meets the self-petitioning requirements. A child who
has been classified as an immigrant based on a petition filed by the
abuser or another relative may also be derivatively included in a
parent's self-petition. The derivative child must be unmarried, less
than 21 years old, and otherwise qualify as the self-petitioner's child
under section 101(b)(1)(F) of the Act until he or she becomes a lawful
permanent resident based on the derivative classification.
(5) Name change. If the self-petitioner's current name is different
than the name shown on the documents, evidence of the name change (such
as the petitioner's marriage certificate, legal document showing name
change, or other similar evidence) must accompany the self-petition.
* * * * *
14. Section 204.2 is amended by redesignating paragraphs (e), (f),
(g), and (h), as paragraphs (f), (g), (h), and (i), respectively; and
by adding a new paragraph (e), to read as follows:
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
* * * * *
(e) Self-petition by child of abusive citizen or lawful permanent
resident. (1) Eligibility. (i) A child may file a self-petition under
section 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act if he or she:
(A) Is the child of a citizen or lawful permanent resident of the
United States;
(B) Is eligible for immigrant classification under section
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful
permanent resident parent;
(E) Has been battered by, or has been the subject of extreme
cruelty perpetrated by, the citizen or lawful permanent resident parent
while residing with that parent;
(F) Is a person of good moral character; and
(G) Is a person whose deportation would result in extreme hardship
to himself or herself.
(ii) Parent-child relationship to the abuser. The self-petitioning
child must be unmarried, less than 21 years of age, and otherwise
qualify as the abuser's child under the definition of child contained
in section 101(b)(1) of the Act when the petition is filed and when it
is approved. Termination of the abuser's parental rights or a change in
legal custody does not alter the self-petitioning relationship provided
the child meets the requirements of section 101(b)(1) of the Act.
(iii) Citizenship or immigration status of the abuser. The abusive
parent must be a citizen of the United States or a lawful permanent
resident of the United States when the petition is filed and when it is
approved. Changes in the abuser's citizenship or lawful permanent
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an
abusive lawful permanent resident will not be automatically upgraded to
immediate relative status. The self-petitioning child would not be
precluded, however, from filing a new self-petition for immediate
relative classification after the abuser's naturalization, provided the
self-petitioning child continues to meet the self-petitioning
requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is
required to comply with the provisions of section 204(c) of the Act,
section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition
is filed. The self-petitioner is not required to be living with the
abuser when the petition is filed, but he or she must have resided with
the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was
[[Page 13076]]
battered by or was the subject of extreme cruelty'' includes, but is
not limited to, being the victim of any act or threatened act of
violence, including any forceful detention, which results or threatens
to result in physical or mental injury. Psychological or sexual abuse
or exploitation, including rape, molestation, incest (if the victim is
a minor), or forced prostitution shall be considered acts of violence.
Other abusive actions may also be acts of violence under certain
circumstances, including acts that, in and of themselves, may not
initially appear violent but are a part of an overall pattern of
violence. The qualifying abuse must have been committed by the citizen
or lawful permanent resident parent, must have been perpetrated against
the self-petitioner, and must have taken place while the self-
petitioner was residing with the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable under section 212(a) of the Act
would not be precluded from being found to be a person of good moral
character, provided the person has not been convicted for the
commission of the offense or offenses in a court of law. A self-
petitioner will also be found to lack good moral character, unless he
or she establishes extenuating circumstances, if he or she willfully
failed or refused to support dependents; or committed unlawful acts
that adversely reflect upon his or her moral character, or was
convicted or imprisoned for such acts, although the acts do not require
an automatic finding of lack of good moral character. A self-
petitioner's claim of good moral character will be evaluated on a case-
by-case basis, taking into account the provisions of section 101(f) of
the Act and the standards of the average citizen in the community. If
the results of record checks conducted prior to the issuance of an
immigrant visa or approval of an application for adjustment of status
disclose that the self-petitioner is no longer a person of good moral
character or that he or she has not been a person of good moral
character in the past, a pending self-petition will be denied or the
approval of a self-petition will be revoked.
(viii) Extreme hardship. The Service will consider all credible
evidence of extreme hardship submitted with a self-petition, including
evidence of hardship arising from circumstances surrounding the abuse.
The extreme hardship claim will be evaluated on a case-by-case basis
after a review of the evidence in the case. Self-petitioners are
encouraged to cite and document all applicable factors, since there is
no guarantee that a particular reason or reasons will result in a
finding that deportation would cause extreme hardship. Hardship to
persons other than the self-petitioner cannot be considered in
determining whether a self-petitioning child's deportation would cause
extreme hardship.
(2) Evidence for a child's self-petition. (i) General. Self-
petitioners are encouraged to submit primary evidence whenever
possible. The Service will consider, however, any credible evidence
relevant to the petition. The determination of what evidence is
credible and the weight to be given that evidence shall be within the
sole discretion of the Service.
(ii) Relationship. A self-petition filed by a child must be
accompanied by evidence of citizenship of the United States citizen or
proof of the immigration status of the lawful permanent resident
abuser. It must also be accompanied by evidence of the relationship.
Primary evidence of the relationship between:
(A) The self-petitioning child and an abusive biological mother is
the self-petitioner's birth certificate issued by civil authorities;
(B) A self-petitioning child who was born in wedlock and an abusive
biological father is the child's birth certificate issued by civil
authorities, the marriage certificate of the child's parents, and
evidence of legal termination of all prior marriages, if any;
(C) A legitimated self-petitioning child and an abusive biological
father is the child's birth certificate issued by civil authorities,
and evidence of the child's legitimation;
(D) A self-petitioning child who was born out of wedlock and an
abusive biological father is the child's birth certificate issued by
civil authorities showing the father's name, and evidence that a bona
fide parent-child relationship has been established between the child
and the parent;
(E) A self-petitioning stepchild and an abusive stepparent is the
child's birth certificate issued by civil authorities, the marriage
certificate of the child's parent and the stepparent showing marriage
before the stepchild reached 18 years of age, and evidence of legal
termination of all prior marriages of either parent, if any; and
(F) An adopted self-petitioning child and an abusive adoptive
parent is an adoption decree showing that the adoption took place
before the child reached 16 years of age, and evidence that the child
has been residing with and in the legal custody of the abusive adoptive
parent for at least 2 years.
(iii) Residence. One or more documents may be submitted showing
that the self-petitioner and the abuser have resided together in the
United States. One or more documents may also be submitted showing that
the self-petitioner is residing in the United States when the self-
petition is filed. Employment records, school records, hospital or
medical records, rental records, insurance policies, affidavits or any
other type of relevant credible evidence of residency may be submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to,
reports and affidavits from police, judges and other court officials,
medical personnel, school officials, clergy, social workers, and other
social service agency personnel. Persons who have obtained an order of
protection against the abuser or taken other legal steps to end the
abuse are strongly encouraged to submit copies of the relating legal
documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. Other types of credible
relevant evidence will also be considered. Documentary proof of non-
qualifying abuse may only be used to establish a pattern of abuse and
violence and to support a claim that qualifying abuse also occurred.
(v) Good moral character. Primary evidence of the self-petitioner's
good moral character is the self-petitioner's affidavit. The affidavit
should be accompanied by a local police clearance or a state-issued
criminal background check from each locality or state in the United
States in which the self-petitioner has resided for six or more months
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during
this time should submit a police clearance, criminal background check,
or similar report issued by the appropriate authority in the foreign
country in which he or she resided for six or more
[[Page 13077]]
months during the 3-year period immediately preceding the filing of the
self-petition. If police clearances, criminal background checks, or
similar reports are not available for some or all locations, the self-
petitioner may include an explanation and submit other evidence with
his or her affidavit. The Service will consider other credible evidence
of good moral character, such as affidavits from responsible persons
who can knowledgeably attest to the self-petitioner's good moral
character. A child who is less than 14 years of age is presumed to be a
person of good moral character and is not required to submit affidavits
of good moral character, police clearances, criminal background checks,
or other evidence of good moral character.
(vi) Extreme hardship. Evidence of extreme hardship may include
affidavits, medical reports, protection orders and other court
documents, police reports, and other relevant credible evidence.
(3) Decision on and disposition of the petition. (i) Petition
approved. If the self-petitioning child will apply for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the self-petitioner will apply for an
immigrant visa abroad, the approved self-petition will be forwarded to
the Department of State's National Visa Center.
(ii) Notice of intent to deny. If the preliminary decision on a
properly filed self-petition is adverse to the self-petitioner, the
self-petitioner will be provided with written notice of this fact and
offered an opportunity to present additional information or arguments
before a final decision is rendered. If the adverse preliminary
decision is based on derogatory information of which the self-
petitioner is unaware, the self-petitioner will also be offered an
opportunity to rebut the derogatory information in accordance with the
provisions of 8 CFR 103.2(b)(16).
(iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial
and of the right to appeal the decision.
(4) Derivative beneficiaries. A child of a self-petitioning child
is not eligible for derivative classification and must have a petition
filed on his or her behalf if seeking immigrant classification.
(5) Name change. If the self-petitioner's current name is different
than the name shown on the documents, evidence of the name change (such
as the petitioner's marriage certificate, legal document showing the
name change, or other similar evidence) must accompany the self-
petition.
* * * * *
Sec. 204.2 [Amended]
15. Section 204.2 is amended in newly designated paragraph
(g)(2)(iv) by revising the reference to ``paragraphs (f)(2)(ii) and
(f)(2)(iii) of this section'' to read ``paragraphs (g)(2)(ii) and
(g)(2)(iii) of this section''.
16. Section 204.2 is amended by adding five new sentences at the
end of the newly redesignated paragraph (h)(2), to read as follows:
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
* * * * *
(h) * * *
(2) * * * A self-petition filed under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act based
on the relationship to an abusive citizen or lawful permanent resident
of the United States will not be regarded as a reaffirmation or
reinstatement of a petition previously filed by the abuser. A self-
petitioner who has been the beneficiary of a visa petition filed by the
abuser to accord the self-petitioner immigrant classification as his or
her spouse or child, however, will be allowed to transfer the visa
petition's priority date to the self-petition. The visa petition's
priority date may be assigned to the self-petition without regard to
the current validity of the visa petition. The burden of proof to
establish the existence of and the filing date of the visa petition
lies with the self-petitioner, although the Service will attempt to
verify a claimed filing through a search of the Service's computerized
records or other records deemed appropriate by the adjudicating
officer. A new self-petition filed under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act
will not be regarded as a reaffirmation or reinstatement of the
original self-petition unless the prior and the subsequent self-
petitions are based on the relationship to the same abusive citizen or
lawful permanent resident of the United States.
* * * * *
17. Section 204.2 is amended by adding a new sentence at the end of
the newly redesignated paragraph (i)(3), to read as follows:
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
* * * * *
(i) * * *
(3) * * * A self-petition filed under section 204(a)(1)(B)(ii) or
204(a)(1)(B)(iii) of the Act based on the relationship to an abusive
lawful permanent resident of the United States for classification under
section 203(a)(2) of the Act will not be affected by the abuser's
naturalization and will not be automatically converted to a petition
for immediate relative classification.
PART 205--REVOCATION OF APPROVAL OF PETITIONS
18. The authority citation for part 205 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182,
and 1186a.
19. Section 205.1 is revised to read as follows:
Sec. 205.1 Automatic revocation.
(a) Reasons for automatic revocation. The approval of a petition or
self-petition made under section 204 of the Act and in accordance with
part 204 of this chapter is revoked as of the date of approval:
(1) If the Secretary of State shall terminate the registration of
the beneficiary pursuant to the provisions of section 203(e) of the Act
before October 1, 1991, or section 203(g) of the Act on or after
October 1, 1994;
(2) If the filing fee and associated service charge are not paid
within 14 days of the notification to the remitter that his or her
check or other financial instrument used to pay the filing fee has been
returned as not payable; or
(3) If any of the following circumstances occur before the
beneficiary's or self-petitioner's journey to the United States
commences or, if the beneficiary or self-petitioner is an applicant for
adjustment of status to that of a permanent resident, before the
decision on his or her adjustment application becomes final:
(i) Immediate relative and family-sponsored petitions, other than
Amerasian petitions. (A) Upon written notice of withdrawal filed by the
petitioner or self-petitioner with any officer of the Service who is
authorized to grant or deny petitions.
(B) Upon the death of the beneficiary or the self-petitioner.
(C) Upon the death of the petitioner, unless the Attorney General
in his or her discretion determines that for humanitarian reasons
revocation would be inappropriate.
(D) Upon the legal termination of the marriage when a citizen or
lawful permanent resident of the United States has petitioned to accord
his or her spouse immediate relative or family-sponsored preference
immigrant classification under section 201(b) or section 203(a)(2) of
the Act. The
[[Page 13078]]
approval of a spousal self-petition based on the relationship to an
abusive citizen or lawful permanent resident of the United States filed
under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act,
however, will not be revoked solely because of the termination of the
marriage to the abuser.
(E) Upon the remarriage of the spouse of an abusive citizen or
lawful permanent resident of the United States when the spouse has
self-petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of
the Act for immediate relative classification under section 201(b) of
the Act or for preference classification under section 203(a)(2) of the
Act.
(F) Upon a child reaching the age of 21, when he or she has been
accorded immediate relative status under section 201(b) of the Act. A
petition filed on behalf of a child under section 204(a)(1)(A)(i) of
the Act or a self-petition filed by a child of an abusive United States
citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain
valid for the duration of the relationship to accord preference status
under section 203(a)(1) of the Act if the beneficiary remains
unmarried, or to accord preference status under section 203(a)(3) of
the Act if he or she marries.
(G) Upon the marriage of a child, when he or she has been accorded
immediate relative status under section 201(b) of the Act. A petition
filed on behalf of the child under section 204(a)(1)(A)(i) of the Act
or a self-petition filed by a child of an abusive United States citizen
under section 204(a)(1)(A)(iv) of the Act, however, will remain valid
for the duration of the relationship to accord preference status under
section 203(a)(3) of the Act if he or she marries.
(H) Upon the marriage of a person accorded preference status as a
son or daughter of a United States citizen under section 203(a)(1) of
the Act. A petition filed on behalf of the son or daughter, however,
will remain valid for the duration of the relationship to accord
preference status under section 203(a)(3) of the Act.
(I) Upon the marriage of a person accorded status as a son or
daughter of a lawful permanent resident alien under section 203(a)(2)
of the Act.
(J) Upon legal termination of the petitioner's status as an alien
admitted for lawful permanent residence in the United States unless the
petitioner became a United States citizen. The provisions of 8 CFR
204.2(i)(3) shall apply if the petitioner became a United States
citizen.
(ii) Petition for Pub. L. 97-359 Amerasian. (A) Upon formal notice
of withdrawal filed by the petitioner with the officer who approved the
petition.
(B) Upon the death of the beneficiary.
(C) Upon the death or bankruptcy of the sponsor who executed Form
I-361, Affidavit of Financial Support and Intent to Petition for Legal
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition may
be filed in the beneficiary's behalf with the documentary evidence
relating to sponsorship and, in the case of a beneficiary under 18
years of age, placement. If the new petition is approved, it will be
given the priority date of the previously approved petition.
(D) Upon the death or substitution of the petitioner if other than
the beneficiary or sponsor. However, if the petitioner dies or no
longer desires or is able to proceed with the petition, and another
person 18 years of age or older, an emancipated minor, or a corporation
incorporated in the United States desires to be substituted for the
deceased or original petitioner, a written request may be submitted to
the Service or American consular office where the petition is located
to reinstate the petition and restore the original priority date.
(E) Upon the beneficiary's reaching the age of 21 when the
beneficiary has been accorded classification under section 201(b) of
the Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(1) of the Act if the beneficiary remains unmarried or
under section 203(a)(3) if the beneficiary marries.
(F) Upon the beneficiary's marriage when the beneficiary has been
accorded classification under section 201(b) or section 203(a)(1) of
the Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(3) of the Act.
(iii) Petitions under section 203(b), other than special immigrant
juvenile petitions. (A) Upon invalidation pursuant to 20 CFR Part 656
of the labor certification in support of the petition.
(B) Upon the death of the petitioner or beneficiary.
(C) Upon written notice of withdrawal filed by the petitioner, in
employment-based preference cases, with any officer of the Service who
is authorized to grant or deny petitions.
(D) Upon termination of the employer's business in an employment-
based preference case under section 203(b)(1)(B), 203(b)(1)(C),
203(b)(2), or 203(b)(3) of the Act.
(iv) Special immigrant juvenile petitions. Unless the beneficiary
met all of the eligibility requirements as of November 29, 1990, and
the petition requirements as of November 29, 1990, and the petition for
classification as a special immigrant juvenile was filed before June 1,
1994, or unless the change in circumstances resulted from the
beneficiary's adoption or placement in a guardianship situation:
(A) Upon the beneficiary reaching the age of 21;
(B) Upon the marriage of the beneficiary;
(C) Upon the termination of the beneficiary's dependency upon the
juvenile court;
(D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or
(E) Upon the determination in administrative or judicial
proceedings that it is in the beneficiary's best interest to be
returned to the country of nationality or last habitual residence of
the beneficiary or of his or her parent or parents.
(b) Notice. When it shall appear to the director that the approval
of a petition has been automatically revoked, he or she shall cause a
notice of such revocation to be sent promptly to the consular office
having jurisdiction over the visa application and a copy of such notice
to be mailed to the petitioner's last known address.
20. Section 205.2 is amended by revising paragraph (b) and adding
new paragraphs (c) and (d), to read as follows:
Sec. 205.2 Revocation on notice.
* * * * *
(b) Notice of intent. Revocation of the approval of a petition of
self-petition under paragraph (a) of this section will be made only on
notice to the petitioner or self-petitioner. The petitioner or self-
petitioner must be given the opportunity to offer evidence in support
of the petition or self-petition and in opposition to the grounds
alleged for revocation of the approval.
(c) Notification of revocation. If, upon reconsideration, the
approval previously granted is revoked, the director shall provide the
petitioner or the self-petitioner with a written notification of the
decision that explains the specific reasons for the revocation. The
director shall notify the consular officer having jurisdiction over the
visa application, if applicable, of the revocation of an approval.
(d) Appeals. The petitioner or self-petitioner may appeal the
decision to
[[Page 13079]]
revoke the approval within 15 days after the service of notice of the
revocation. The appeal must be filed as provided in part 3 of this
chapter, unless the Associate Commissioner for Examinations exercises
appellate jurisdiction over the revocation under part 103 of this
chapter. Appeals filed with the Associate Commissioner for Examinations
must meet the requirements of part 103 of this chapter.
PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS
21. The authority citation for part 216 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8
CFR part 2.
22. Section 216.1 is amended by adding a new sentence at the end of
the section, to read as follows:
Sec. 216.1 Definition of conditional permanent resident.
* * * The conditions of section 216 of the Act shall not apply to
lawful permanent resident status based on a self-petitioning
relationship under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(b)(ii), or 204(a)(1)(B)(iii) of the Act or based on
eligibility as the derivative child of a self-petitioning spouse under
section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act, regardless of
the date on which the marriage to the abusive citizen or lawful
permanent resident occurred.
Dated: March 1, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-7219 Filed 3-25-96; 8:45 am]
BILLING CODE 4410-10-M
