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

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