[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13061-13079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7219]



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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 204, 205 and 216

[INS No. 1705-95]
RIN 1115-AE04


Petition to Classify Alien as Immediate Relative of a United 
States Citizen or as a Preference Immigrant; Self-Petitioning for 
Certain Battered or Abused Spouses and Children

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the Immigration and Naturalization 
Service (``the Service'') regulations to allow a spouse or child to 
seek immigrant classification if he or she has been battered by, or 
subjected to extreme cruelty committed by, the citizen or lawful 
permanent resident spouse or parent. It also permits a spouse to seek 
classification if his or her child has been battered by, or subjected 
to extreme cruelty committed by, the citizen or lawful permanent 
resident spouse. A qualified spouse or child who is living in the 
United States but is not a permanent resident may use the procedures 
established by this rule to self-petition for immigrant classification. 
The self-petition may be filed without the abuser's knowledge or 
consent, and may include the children of a self-petitioning spouse. A 
person who is granted immigrant classification under this provision may 
become eligible for lawful permanent resident status. A lawful 
permanent resident of the United States has legal permission to live 
and work in this country, and may later qualify for U.S. citizenship 
through naturalization.

DATES: This interim rule is effective March 26, 1996. Written comments 
must be received on or before May 28, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 
20536, Attn: Public Comment Clerk. To ensure proper handling, please 
reference the INS number 1705-95 on your correspondence. Comments are 
available for public inspection at this location by calling (202) 514-
3048 to arrange an appointment.



[[Page 13062]]


FOR FURTHER INFORMATION CONTACT:

Rita A. Arthur, Senior Adjudications Officer, Adjudications Division, 
Immigration and Naturalization Service, 425 I Street NW., Room 3214, 
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION: 
Background
    The Immigration and Nationality Act (``the Act'') allows certain 
relatives of a citizen or lawful permanent resident of the United 
States to be classified for immigration. These relatives are not 
automatically entitled to immigrate; the Service must approve a visa 
petition filed by the citizen or lawful permanent resident for the 
family member, and the relative must qualify for immigrant visa 
issuance abroad or adjustment of status in the United States.
    Citizens and lawful permanent residents may choose whether and when 
to petition for a relative. Most citizens and lawful permanent 
residents seek permission to bring their family members to the United 
States as soon as possible. They file for all their qualified 
relatives, except family members who do not want to live in the United 
States and those with whom they do not care to be reunited.
    Some abusive citizens or lawful permanent residents, however, 
misuse their control over the petitioning process. Instead of helping 
close family members to legally immigrate, they use this discretionary 
power to perpetuate domestic abuse of their spouses and minor children 
who have been living with them in the United States. Abusers generally 
refuse to file relative petitions for their closest family members 
because they find it easier to control relatives who do not have lawful 
immigration status. These family members are less likely to report the 
abuse or leave the abusive environment because they fear deportation or 
believe that only citizens and authorized immigrants can obtain legal 
and social services. An abuser may also coerce family members' 
compliance in other areas by threatening deportation or by promising to 
file a relative petition in the future.

Crime Bill

    The plight of these domestic abuse victims, who are unable to leave 
the United States for financial, social, cultural, or other reasons, 
was addressed by the Violent Crime Control and Law Enforcement Act of 
1994 (``the Crime Bill''), Public Law 103-322, dated September 13, 
1994. Title IV of the Crime Bill, The Violence Against Women Act of 
1994 (``the VAWA''), contains several provisions that limit the ability 
of an abusive citizen or lawful permanent resident to use the 
immigration laws to further violence against a spouse or child in the 
United States. Although the title of this portion of the Crime Bill 
reflects the fact that many abuse victims are women, abused spouses and 
children of either sex may benefit from these provisions. Section 40701 
of the Crime Bill allows a qualified spouse or child to self-petition 
for immigrant classification based on the relationship to the abusive 
citizen or lawful permanent resident of the United States, without the 
abuser's participation or consent. This section also permits an 
eligible abused spouse to include his or her children in the petition, 
if the children have not petitioned separately. Section 40702 of the 
Crime Bill, which will be the subject of a separate rulemaking, 
provides guidelines for the acceptance and evaluation of credible 
evidence of abuse submitted with certain requests for removal of 
conditions on residency under section 216 of the Act. Section 40703 of 
the Crime Bill, which will also be addressed separately, allows certain 
abused spouses and children who have been continuously physically 
present in the United States for the past 3 years to apply for 
suspension of deportation.

Basic Self-Petitioning Eligibility Requirements

    A spouse who is self-petitioning under section 40701 of the Crime 
Bill must show that he or she: (1) is the spouse of a citizen or lawful 
permanent resident of the United States; (2) is eligible for immigrant 
classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act 
based on that relationship; (3) is residing in the United States; (4) 
has resided in the United States with the citizen or lawful permanent 
resident spouse; (5) has been battered by, or has been the subject of 
extreme cruelty perpetrated by, the citizen or lawful permanent 
resident during the marriage; or is the parent of a child who has been 
battered by, or has been the subject of extreme cruelty perpetrated by, 
the citizen or lawful permanent resident during the marriage; (6) is a 
person of good moral character; (7) is a person whose deportation would 
result in extreme hardship to himself, herself, or his or her child; 
and (8) entered into the marriage to the citizen or lawful permanent 
resident in good faith.
    A child who is self-petitioning under section 40701 of the Crime 
Bill must show that he or she: (1) is the child of a citizen or lawful 
permanent resident of the United States; (2) is eligible for immigrant 
classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act 
based on that relationship; (3) is residing in the United States; (4) 
has resided in the United States with the citizen or lawful permanent 
resident parent; (5) has been battered by, or has been the subject of 
extreme cruelty perpetrated by, the citizen or lawful permanent 
resident parent while residing with that parent; (6) is a person of 
good moral character; and (7) is a person whose deportation would 
result in extreme hardship to himself or herself.

Spouse of a Citizen or Lawful Permanent Resident

    The Crime Bill's changes to section 204(a)(1) of the Act, which 
allow a self-petition to be filed, describe the spousal relationship 
between the self-petitioner and the abuser in the present tense. They 
characterize a self-petitioning spouse as a person who is the spouse of 
a citizen or lawful permanent resident of the United States, and 
include no provisions for filing a self-petition based on a former 
spousal relationship. This rule, therefore, requires the self-
petitioning spouse to be legally married to the abuser when the 
petition is filed. It specifies that a spousal self-petition must be 
denied if the petitioner's marriage to the abuser legally ended by 
annulment, death, or divorce before that time. The rule also stipulates 
that the abuser be a citizen or lawful permanent resident of the United 
States when the self-petition is filed.
    Although it does not allow a self-petition to be filed based on a 
former spousal relationship, section 40701 of the Crime Bill directs 
the Service not to revoke the approval of a self-petition solely 
because the marriage has legally ended. This statutory provision 
protects the self-petitioner against an abuser's attempt to regain 
control over the petitioning process through legal termination of the 
marriage. It also allows a qualified self-petitioner to make decisions 
concerning the abusive relationship without regard to immigration 
considerations. This rule reflects the legislative provision 
safeguarding the self-petitioner's control over the immigration 
classification process.
    While section 40701 of the Crime Bill requires the marriage to be 
legally valid at the time of filing and specifies that its termination 
after approval will not be the sole basis for revocation, it does not 
address the effect of a legal termination occurring between the filing 
and the approval of the self-petition. In the absence of explicit 
legislative guidelines, the Service has determined that protections for 
spouses whose self-

[[Page 13063]]
petitions have been approved should be extended to cover the entire 
period after the self-petition is filed. This rule, therefore, allows 
an otherwise approvable self-petition to be granted despite the legal 
termination of the marriage through annulment, divorce, or death while 
the self-petition was pending before the Service. It provides that the 
legal termination of the marriage after the self-petition has been 
properly filed with the Service will have not effect on the Service's 
decision concerning the self-petition.
    The rule further provides, however, that a pending spousal self-
petition will be denied or an approved spousal self-petition will be 
revoked if the self-petitioner chooses to remarry before becoming a 
lawful permanent resident. By remarrying, the self-petitioner has 
established a new spousal relationship and has shown that he or she no 
longer needs the protections of section 40701 of the Crime Bill to 
equalize the balance of power in the relationship with the abuser. If 
the new husband or wife is a citizen or lawful permanent resident of 
the United States, he or she may file for the former self-petitioner's 
classification as an immigrant. The self-petitioner also would not be 
precluded from filing a self-petition based on the new family 
relationship if the new spouse is an abusive citizen or lawful 
permanent resident of the United States. A self-petition filed on the 
basis of a new marriage will be assigned a priority date based on the 
date it was properly filed with the Service or based on the date a visa 
petition filed by the current abusive spouse was properly filed with 
the Service. This rule does not allow a priority date to be transferred 
from a self-petition or visa petition based on a prior marriage.
    It also provides that changes in the abuser's citizenship or lawful 
permanent resident status will not affect the validity of an approved 
self-petition. This provision eliminates the possibility that an abuser 
could recapture control over the immigration classification process by 
changing his or her own immigration status. An approved self-petition 
will not be revoked solely because the abuser subsequently abandons 
lawful permanent resident status, renounces United States Citizenship, 
is deported, or otherwise changes immigration status. Similarly, a 
self-petition approved on the basis of a relationship to a lawful 
permanent resident will not be automatically upgraded to a petition for 
immediate relative classification if the abuser becomes a naturalized 
citizen of the United States. A spouse would not be precluded from 
filing a new self-petition for classification as an immediate relative 
after the abuser naturalizes, provided he or she continues to meet the 
self-petitioning requirements.
    This rule requires a self-petitioning spouse to provide documentary 
evidence of his or her legal relationship to the abuser and evidence of 
the abuser's immigration or citizenship status. Self-petitioners are 
encouraged to submit primary evidence whenever possible, although the 
Service will consider any relevant credible evidence. The Service's 
regulations at 8 CFR 204.1 and 204.2 provide detailed information 
concerning primary and secondary supporting documentation of a spousal 
relationship to a citizen or lawful permanent resident.
    Primary evidence of a marital relationship is a marriage 
certificate issued by civil authorities and proof of the termination of 
all prior marriages, if any, of both the self-petitioner and the 
abuser. Primary evidence of the abuser's U.S. citizenship or lawful 
permanent residence is: (1) a birth certificate issued by a civil 
authority establishing the abuser's birth in the United States; (2) the 
abuser's unexpired full-validity United States passports; (3) a 
statement issued by a U.S. consular officer certifying the abuser to be 
a U.S. citizen and the bearer of a currently valid U.S. passport; (4) 
the abuser's Certificate of Naturalization or Certificate of 
Citizenship; (5) a Department of State Form FS-240, Report of Birth 
Abroad of a Citizen of the United States, relating to the abuser; or 
(6) the abuser's Form I-151 or Form I-551 Alien Registration Receipt 
Card, or other proof given by the Service as evidence of lawful 
permanent residence.
    If primary or secondary evidence of an abuser's immigration or 
citizenship status is not available, this rule provides that the 
Service will attempt to electronically verify the abuser's status from 
information contained in Service computerized records. Other Service 
records may also be reviewed at the discretion of the adjudicating 
officer. If the Service is unable to identify a record as relating to 
the abuser or the record does not establish the abuser's immigration or 
citizenship status, the self-petition will be adjudicated based on the 
information submitted by the self-petitioner.

Child of a Citizen or Lawful Permanent Resident

    Section 40701 of the Crime Bill describes a self-petitioning child 
as a person who is the child of a citizen or lawful permanent resident 
of the United States. By again characterizing the relationship between 
the self-petitioner and the abuser in the present tense, these 
amendments to the Act clearly show that the required relationship must 
exist when the petition is filed.
    The term ``child'' is defined in section 101(b)(1) of the Act as 
including certain children born in or out of wedlock, and certain 
legitimated, adopted, and stepchildren. This definition also requires a 
child to be unmarried and less than 21 years of age. The rule, 
therefore, requires a self-petitioning child to be unmarried, less than 
21 years of age, and to otherwise qualify as the abuser's ``child'' 
when the self-petition is filed and when it is approved. It also 
requires the self-petitioning child's abusive parent to be a U.S. 
citizen or lawful permanent resident when the self-petition is filed 
and when it is approved.
    This rule specifies that an approved self-petition for a child of a 
United States citizen, however, will be automatically converted to an 
approved petition for classification as the unmarried or married adult 
son or daughter of a United States citizen when the self-petitioner 
reaches 21 years of age or marries. Similarly, an approved self-
petition for a child of a lawful permanent resident of the United 
States will be automatically converted to an approved petition for 
classification as the unmarried adult son or daughter of a lawful 
permanent resident when the unmarried self-petitioner reaches 21 years 
of age. The approval of a self-petition for the child of an abusive 
lawful permanent resident must be automatically revoked, however, when 
the son or daughter marries. There is no immigration category for a 
married son or daughter of a lawful permanent resident. An 
automatically converted self-petition will retain the self-petition's 
original priority date.
    Under the provisions of this rule, a self-petitioning child must be 
the child of the abusive citizen or lawful permanent resident but need 
not be the child of a self-petitioning spouse. A self-petition may be 
approved although the child's other parent is unable or unwilling to 
self-petition. The rule also does not require the self-petitioning 
child to be in the abuser's legal custody. Termination of the abuser's 
parental rights or a change in legal custody does not alter the self-
petitioning relationship, provided the self-petitioner meets the 
definition of ``child'' contained in section 101(b)(1) of the Act when 
the self-petition is approved, or met that definition at the time of 
approval.
    As discussed previously under ``Spouse of a citizen or lawful 
permanent resident,'' changes in the

[[Page 13064]]
abuser's citizenship or lawful permanent resident status will not 
affect the validity of an approved self-petition. This regulatory 
provision eliminates the possibility that an abuser could recapture 
control over the abused child's immigration classification by changing 
his or her own immigration status. An approved self-petition for a 
child will not be revoked solely because the abuser subsequently 
abandons lawful permanent resident status, renounces United States 
citizenship, is deported, or otherwise changes immigration status. 
Similarly, a self-petition approved on the basis of a parent-child 
relationship to a lawful permanent resident will not be automatically 
upgraded to a petition for immediate relative classification if the 
abuser becomes a naturalized citizen of the United States. The abused 
child would not be precluded from filing a new self-petition for 
classification as an immediate relative after the abuser naturalizes, 
provided the child continues to meet the self-petitioning requirements.
    This rule requires a self-petitioning child to provide documentary 
evidence of his or her relationship to the abuser and evidence of the 
abuser's immigration or citizenship status. Self-petitioners are 
encouraged to submit primary evidence whenever possible, although the 
Service will consider any relevant credible evidence. The Service's 
regulations at 8 CFR 204.1 and 204.2 provide detailed information 
concerning primary or secondary supporting documentation of a parent-
child relationship to a citizen or lawful permanent resident.
    Primary evidence of the relationship between: (1) a child and an 
abusive biological mother is the child's birth certificate issued by 
civil authorities; (2) a child born in wedlock and an abusive 
biological father is the child's birth certificate issued by civil 
authorities, the marriage certificate of the child's parents, and 
evidence of legal termination of all prior marriages, if any; (3) a 
legitimated child and an abusive biological father is the child's birth 
certificate issued by civil authorities, and evidence of the child's 
legitimation; (4) a child born out of wedlock and an abusive biological 
father is the child's birth certificate issued by civil authorities 
showing the father's name, and evidence that a bona fide parent-child 
relationship has been established between the child and the parent; (5) 
a stepchild and a stepparent is the child's birth certificate issued by 
civil authorities, the marriage certificate of the child's parent and 
the stepparent showing marriage before the stepchild reached 18 years 
of age, and evidence of legal termination of all prior marriages of 
either parent, if any; (6) an adopted child and an abusive adoptive 
parent is an adoption decree showing that the adoption took place 
before the child reached 16 years of age, and evidence that the child 
has been residing with and in the legal custody of the abusive adoptive 
parent for at least 2 years.
    Primary evidence of the abuser's U.S. citizenship or lawful 
permanent residence is: (1) a birth certificate issued by a civil 
authority establishing the abuser's birth in the United States; (2) the 
abuser's unexpired full-validity United States passport; (3) a 
statement issued by a U.S. consular officer certifying the abuser to be 
a U.S. citizen and the bearer of a currently valid U.S. passport; (4) 
the abuser's Certificate of Naturalization or Certificate of 
Citizenship; (5) a Department of State Form FS-240, Report of Birth 
Abroad of a Citizen of the United States, relating to the abuser; and 
(6) the abuser's Form I-151 or Form I-551 Alien Registration Receipt 
Card, or other proof given by the Service as evidence of lawful 
permanent residence.
    If primary or secondary evidence of an abuser's immigration or 
citizenship status is not available, this rule provides that the 
Service will attempt to electronically verify the abuser's status from 
information contained in Service computerized records. Other Service 
records may also be reviewed at the discretion of the adjudicating 
officer. If the Service is unable to identify a record as relating to 
the abuser or the record does not establish the abuser's immigration or 
citizenship status, the self-petition will be adjudicated based on the 
information submitted by the self-petitioner.

Eligible for Immigrant Classification

    Section 40701 of the Crime Bill requires a self-petitioning spouse 
or child to be eligible for classification as an immediate relative 
under section 201(b)(2)(A)(i) of the Act or for preference 
classification under section 203(a)(2)(A) of the Act. Eligibility as an 
immediate relative or for preference classification requires more than 
a mere showing of a legal relationship to a citizen or lawful permanent 
resident of the United States; other conditions must also be met. 
Section 40701 of the Crime Bill amended the Act to ensure that self-
petitioners would be subject to certain provisions of the Immigration 
Marriage Fraud Amendments of 1986 (IMFA), Public Law 99-639, November 
10, 1986, which were enacted by Congress to detect and deter 
immigration-related marriage fraud. This rule reflects these statutory 
requirements.
    A petition must be denied under the provisions of section 204(c) of 
the Act if there is substantial and probative evidence that the self-
petitioner has ever attempted or conspired to enter into a marriage for 
the purpose of evading the immigration laws. The self-petitioner does 
not need to have received a benefit through the attempt or conspiracy. 
He or she also need not have been convicted of, or even prosecuted for, 
the attempt or conspiracy. Evidence of the attempt or conspiracy, 
however, must be contained in the self-petitioner's immigration file.
    Section 204(g) of the Act may also apply to a self-petition. It 
prohibits the approval of a self-petition if the marriage creating the 
relationship to the citizen or permanent resident took place while the 
self-petitioner was in deportation, exclusion, or related proceedings, 
unless the self-petitioner provides clear and convincing evidence that 
the marriage was not entered into for the purpose of obtaining 
immigration benefits. This limitation will not apply if the self-
petitioner has lived outside the United States for at least 2 years 
after the marriage. The ``clear and convincing'' standard places a 
heavier burden on the petitioner than the ``preponderance of evidence'' 
criteria generally applicable to visa petitions and self-petitions. 
Although there may be no proof that the marriage was fraudulent, a 
self-petition subject to this restriction must be denied if the 
petitioner does not provide ``clear and convincing'' evidence that the 
marriage was entered into in good faith.
    The provisions of section 204(a)(2) of the Act, which were amended 
by section 40701(b) of the Crime Bill to encompass certain self-
petitions, may also preclude the approval of a self-petition. A self-
petition must be denied if the lawful permanent resident abuser 
acquired permanent residence within the past 5 years based on a 
marriage to a citizen or lawful permanent resident, unless the petition 
is supported by clear and convincing evidence that the prior marriage 
was not entered into for the purpose of evading any provision of the 
immigration laws. This restriction will not apply if the earlier 
marriage ended because of the death of the spouse. As explained in the 
previous paragraph, the ``clear and convincing'' standard imposes a 
heavier burden of proof on the self-petitioner. Although there may be 
no proof that the marriage was fraudulent, a self-petition subject to 
this restriction must be denied if the petitioner does not provide 
``clear and

[[Page 13065]]
convincing'' evidence that the earlier marriage was bona fide.
    Before determining that a self-petition must be denied under 
section 204(c), 204(g), or 204(a)(2) of the Act, the Service will allow 
a self-petitioner the opportunity to provide additional evidence or 
arguments concerning the case. A denial under section 204(g) or 
204(a)(2) of the Act is without prejudice to the filing of a new self-
petition when the spouse or child is able to comply with these 
requirements.
    The Service has previously determined that a variety of evidence 
may be used to establish a good-faith marriage, and a self-petitioner 
should submit the best evidence available. Evidence of good faith at 
the time of marriage may include, but is not limited to, proof that one 
spouse has been listed as the other's spouse on insurance policies, 
property leases, income tax forms, or bank accounts; and testimony or 
other evidence regarding courtship, wedding ceremony, shared residence 
and experiences. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Other 
types of readily available evidence might include the birth 
certificates of children born to the relationship; police, medical, or 
court documents providing information about the relationship; and 
affidavits of persons with personal knowledge of the relationship. 
Self-petitioners who submit affidavits are encouraged to submit 
affidavits from more than one person. Other types of evidence may also 
be submitted; the Service will consider any relevant credible evidence.

Residence in the United States and Residence With the Abuser

    Section 40701 of the Crime Bill requires the self-petitioner to be 
residing in the United States and to have resided in the United States 
with the abuser. A self-petition will not be approved if the self-
petitioner is not living in the United States or has never lived with 
the abuser in the United States. Under the provisions of this rule, 
however, the self-petitioner is not required to be residing with the 
abuser when the petition is filed. The rule also does not limit the 
time that may have elapsed since the self-petitioner last resided with 
the abuser.
    ``Residence'' is defined in section 101(a)(33) of the Act as a 
person's general place of abode. It is also described as a person's 
principal, actual dwelling place in fact, without regard to intent. A 
self-petitioner cannot meet the residency requirements by merely 
visiting the United States or visiting the abuser's home in the United 
States while continuing to maintain a general place of abode or 
principal dwelling place elsewhere. This rule, however, does not 
require the self-petitioner to have lived in the United States or with 
the abuser in the United States for any specific length of time. It 
also does not mandate continuous physical presence in the United 
States. A qualified self-petitioner may have moved to the United States 
only recently, made any number of trips abroad, or resided with the 
abuser in the United States for only a short time.
    Evidence of residency with the abuser in the United States may take 
many forms. Employment records, utility receipts, school records, 
hospital or medical records, birth certificates of children born to the 
spouses in the United States, deeds, mortgages, rental records, 
insurance policies, or similar documents have been accepted as evidence 
of residency. This rule allows the submission of one or more documents 
showing the self-petitioner and the abuser residing together. It also 
allows the submission of two or more documents that, when considered 
together, establish that the self-petitioner and the abuser were 
residing at the same location concurrently. A self-petitioner may also 
submit affidavits to establish residency with the abuser. Self-
petitioners who file affidavits are encouraged to provide the 
affidavits of more than one person. Other types of evidence may also be 
submitted; the Service will consider any relevant credible evidence.

Battery or Extreme Cruelty

    Section 40701 of the Crime Bill requires a self-petitioning spouse 
to have been battered by, or been the subject of extreme cruelty 
perpetrated by, the citizen or lawful permanent resident spouse; or to 
be the parent of a child who was battered by, or who was the subject of 
extreme cruelty perpetrated by, the citizen or lawful permanent 
resident during the marriage. It requires a self-petitioning child to 
have been battered by, or to have been the subject of extreme cruelty 
perpetrated by, the citizen or lawful permanent resident parent while 
the child was residing with that parent. This rule reflects the 
statutory requirements by specifying that only certain types of abuse 
will qualify a spouse or child to self-petition. ``Qualifying abuse'' 
under this rule is abuse that meets the criteria of section 40701 of 
the Crime Bill concerning when, by whom, to whom, and to what degree 
the domestic abuse occurred.
    The qualifying abuse must have taken place during the statutorily 
specified time. A spousal self-petitioner must show that the abuse took 
place during the marriage to the abuser. A self-petitioning child must 
show that he or she was abused while residing with the abuser. Battery 
or extreme cruelty that happened at other times is not qualifying 
abuse. There is no limit on the time that may have elapsed since the 
last incident of qualifying abuse occurred.
    The qualifying abuse also must have been committed by the abusive 
citizen or lawful permanent resident spouse or parent. Battery or 
extreme cruelty by any other person is not qualifying abuse, unless it 
can be shown that the citizen or lawful permanent resident willfully 
condoned or participated in the abusive act(s).
    Only abuse perpetrated against the self-petitioning spouse, the 
self-petitioning child, or the self-petitioning spouse's child will be 
considered qualifying. Acts ostensibly aimed at some other person or 
thing may be considered qualifying only if it can be established that 
these acts were deliberately used to perpetrate extreme cruelty against 
the self-petitioner or the self-petitioning spouse's child. Battery or 
extreme cruelty committed solely against a third party and in no way 
directed at or used against the spouse or child is not qualifying 
abuse.
    The qualifying abuse also must have been sufficiently aggravated to 
have reached the level of battery or extreme cruelty. Service 
regulations at 8 CFR 216.5(e)(3)(i) currently define the phrase ``was 
battered by or was the subject of extreme cruelty.'' This definition 
was initially developed to facilitate the filing and adjudication of 
requests to waive certain requirements for removal of conditions on 
residency. These waivers are based on the applicant's claim of battery 
or extreme cruelty perpetrated by the citizen or lawful permanent 
resident spouse or parent. Since the regulatory definition has proven 
to be flexible and sufficiently broad to encompass all types of 
domestic battery and extreme cruelty, this rule adopts an identical 
definition for evaluating claims of battering or extreme cruelty under 
section 40701 of the Crime Bill. The definition reads as follows:

    For the purpose of this chapter, the phrase ``was battered by or 
was the subject of extreme cruelty'' includes, but is not limited 
to, being the victim of any act or threatened act of violence, 
including any forceful detention, which results or threatens to 
result in physical or mental injury. Psychological or sexual abuse 
or exploitation, including rape, molestation, incest (if the victim 
is a minor), or forced prostitution shall be considered acts of 
violence.


[[Page 13066]]

    The acts mentioned in this definition--rape, molestation, incest if 
the victim is a minor, and forced prostitution--will be regarded by the 
Service as acts of violence whenever they occur. Many other abusive 
actions, however, may also be qualifying acts of violence under this 
rule. Acts that, in and of themselves, may not initially appear violent 
may be part of an overall pattern of violence. It is not possible to 
cite all perpetrations that could be acts of violence under certain 
circumstances. The Service does not wish to mislead a potentially 
qualified self-petitioner by establishing a partial list that may be 
subject to misinterpretation. This rule, therefore, does not itemize 
abusive acts other than those few particularly egregious examples 
mentioned in the definition of the phrase ``was battered by or was the 
subject of extreme cruelty.''
    This rule requires a self-petitioner to provide evidence of 
qualifying abuse. If the self-petition is based on a claim that the 
self-petitioning spouse's child was battered or subjected to extreme 
cruelty committed by the citizen or lawful permanent resident spouse, 
this rule requires the self-petition to be accompanied by evidence of 
the abuse and evidence of the relationship between the self-petitioner 
and the abused child. Available relevant evidence will vary, and self-
petitioners are encouraged to provide the best available evidence of 
qualifying abuse. A self-petitioner is not precluded from submitting 
documentary proof of non-qualifying abuse with the self-petition; 
however, that evidence can only be used to establish a pattern of abuse 
and violence and to bolster claims that qualifying abuse also occurred.
    The rule provides that evidence of abuse may include, but is not 
limited to, reports and affidavits from police, judges and other court 
officials, medical personnel, school officials, clergy, social workers, 
and other social service agency personnel. Persons who have obtained an 
order of protection against the abuser or taken other legal steps to 
end the abuse are strongly encouraged to submit copies of the relating 
legal documents. Evidence that the abuse victim sought safe-haven in a 
battered women's shelter or similar refuge may be relevant, as may a 
combination of documents such as a photograph of the visibly injured 
self-petitioner supported by affidavits. This rule also provides that 
other forms of credible evidence will be accepted, although the Service 
will determine whether documents appear credible and the weight to be 
given to them.
    Self-petitioners who can provide only affidavits are encouraged to 
submit the affidavits of more than one person. The Service is not 
precluded from deciding, however, that the self-petitioner's 
unsupported affidavit is credible and that it provides relevant 
evidence of sufficient weight to meet the self-petitioner's burden of 
proof.

Good Moral Character

    Section 40701 of the Crime Bill requires all self-petitioners to be 
persons of good moral character, but does not specify the period for 
which good moral character must be established. This rule requires 
self-petitioning spouses and self-petitioning children who are 14 years 
of age or older to provide evidence showing that they have been persons 
of good moral character for the 3 years immediately preceding the date 
the self-petition is filed. It does not preclude the Service from 
choosing to examine the self-petitioner's conduct and acts prior to 
that period, however, if there is reason to believe that the self-
petitioner may not have been a person of good moral character in the 
past. The rule provides that self-petitioning children who are less 
than 14 years of age are not required to submit evidence of good moral 
character when filing the self-petition. A self-petitioner who is less 
than 14 years of age will be presumed to be a person of good moral 
character. This presumption does not preclude the Service from 
requesting evidence of good moral character, however, if there is 
reason to believe that the self-petitioning child may lack good moral 
character. The rule provides that a self-petition filed by a person of 
any age may be denied or revoked if evidence establishing that the 
person lacks good moral character is contained in the Service file.
    It also provides that the Service will evaluate claims of good 
moral character on a case-by-case basis, taking into account the 
provisions of section 101(f) of the Act and the standards of the 
average citizen in the community. Section 101(f) of the Act lists the 
classes of persons who cannot be found to be persons of good moral 
character, and specifies that persons not within any of those classes 
may also be found to be lacking good moral character. The Service 
cannot find a person to be of good moral character under section 101(f) 
if he or she: (1) is or was a habitual drunkard; (2) is or was engaged 
in prostitution during the past 10 years as described in section 
212(a)(2)(D) of the Act; (3) is or was involved in the smuggling of a 
person or persons into the United States as described in section 
212(a)(6)(E) of the Act; (4) is or was a practicing polygamist; (5) has 
been convicted or admits committing acts that constitute a crime 
involving moral turpitude other than a purely political offense, except 
for certain petty offenses or offenses committed while the person was 
less than 18 years of age as described in section 212(a)(2)(A)(ii) of 
the Act; (6) has committed two or more offenses for which the applicant 
was convicted and the aggregate sentence actually imposed was 5 years 
or more, provided that, if an offense was committed outside the United 
States, it was not a purely political offense; (7) has violated laws 
relating to a controlled substance, except for simple possession of 30 
grams or less of marijuana; (8) earns his or her income principally 
from illegal gambling activities or has been convicted of two or more 
gambling offenses; (9) has given false testimony for the purpose of 
obtaining immigration benefits; (10) has been confined as a result of 
conviction to a penal institution for an aggregate period of 180 days 
or more; or (11) has been convicted of an aggravated felony.
    The Service must conclude that a person who has been convicted of 
an offense falling within section 101(f) of the Act lacks good moral 
character. The Service may only look to the judicial records to 
determine whether the person has been convicted of the crime, and may 
not look behind the conviction to reach an independent determination 
concerning guilt or innocence. Pablo v. INS, 72 F.3d 110, 113 (9th Cir. 
1995); Gouveia v. INS, 980 F.2d 814, 817 (1st Cir. 1992); and Matter of 
Roberts, Int. Dec. 3148 (BIA 1991).
    Extenuating circumstances may be taken into account, however, if 
the person has not been convicted of the offense in a court of law but 
admits to the commission of an act or acts that could show a lack of 
good moral character. The Board of Immigration Appeals (BIA) has ruled 
that a person who admitted to having engaged in prostitution under 
duress but had no prostitution convictions was not excludable as a 
prostitute under section 212(a)(12) of the Act (currently section 
212(a)(2)(D) of the Act) because she was involuntarily reduced to such 
a state of mind that she was actually prevented from exercising free 
will through the use of wrongful, oppressive threats, or unlawful 
means. Matter of M-, 7 I&N Dec. 251 (BIA 1956). A person who was 
subjected to abuse in the form of forced prostitution or who can 
establish that he or she was forced to engage in other behavior that 
could render the person excludable, therefore, would not be precluded 
from being found to be a person of good moral character if the person 
has not been convicted for the

[[Page 13067]]
commission of the offense or offenses in a court of law.
    This rule also provides that a person will be found to lack good 
moral character, unless he or she establishes extenuating 
circumstances, if he or she: (1) willfully failed or refused to support 
dependents; or (2) committed unlawful acts that adversely reflect upon 
his or her moral character, or was convicted or imprisoned for such 
acts, although the acts do not require an automatic finding of lack of 
good moral character.
    Under this rule, primary evidence of good moral character is the 
self-petitioner's affidavit. The affidavit should be accompanied by a 
local police clearance or a state-issued criminal background check from 
each locality or state in the United States in which the self-
petitioner resided for six or more months during the 3-year period 
immediately preceding the filing of the self-petition. Self-petitioners 
who lived outside the United States during this time should submit a 
police clearance, criminal background check, or similar report issued 
by the appropriate authority in each foreign country in which he or she 
resided for six or more months during the 3-year period immediately 
preceding the filing of the self-petition. If police clearances, 
criminal background checks, or similar reports are not available for 
some or all locations, the self-petitioner may include an explanation 
and submit other evidence with his or her affidavit. The Service will 
consider other credible evidence of good moral character, such as 
affidavits from responsible persons who can knowledgeably attest to the 
self-petitioner's good moral character.
    The Service of the Department of State will conduct additional 
record checks before issuing an immigrant visa or granting a self-
petitioner's application for adjustment of status. If the results of 
these record checks disclose that the self-petitioner is no longer a 
person of good moral character or that he or she has not been a period 
of good moral character in the past, a pending self-petition will be 
denied or the approval of a self-petition will be revoked.

Extreme Hardship

    Section 40701 of the Crime Bill also requires a self-petitioning 
spouse to show that his or her deportation would cause extreme hardship 
to himself, herself, or his or her child. It similarly requires a self-
petitioning child to show that his or her deportation would cause 
extreme hardship to himself or herself. The self-petitioner has the 
burden of proof; a self-petition must be denied if the petitioner does 
not show that his or here deportation would cause extreme hardship. 
Hardship to persons other than the self-petitioner or the child of a 
self-petitioning spouse, such as extended family members, cannot be the 
basis for a self-petition under this rule.
    The phrase ``extreme hardship'' is not defined in the Act, and 
sections 40701 and 40703 of the Crime Bill provide no additional 
guidelines for the interpretation of this requirement. The phrase 
``extreme hardship'' has acquired a settled judicial and administrative 
meaning, however, largely in the context of suspension of deportation 
cases under section 244 of the Act.
    It has been found that the personal deprivation contemplated in a 
situation characterized by ``extreme hardship'' within the meaning of 
section 244 of the Act is not a definable term of fixed and inflexible 
content or meaning; it necessarily depends upon the facts and 
circumstances peculiar to each case. Matter of Hwang, 10 I&N Dec. 448 
(BIA 1964). The hardship requirement encompasses more than the mere 
economic deprivation that might result from an alien's deportation for 
the United States. Davidson v. INS, 558 F.2d 1361 (9th Cir. 1977); and 
Matter of Sipus, 14 I&N Dec. 229 (BIA 1972). It has also been found 
that the loss of a job and the concomitant financial loss incurred is 
not synonymous with extreme hardship. Lee v. INS, 550 F.2d 554 (9th 
Cir. 1977). Similarly, readjustment to life in the native country after 
having spent a number of years in the United States is not the type of 
hardship that has been characterized as extreme, since most aliens who 
have spent time abroad suffer this kind of hardship. Matter of Uy, 11 
I&N Dec. 159 (BIA 1965).
    ``Extreme hardship'' must be evaluated on a case-by-case basis 
after a review of all the circumstances in the case. This rule, 
therefore, does not include a list of ``factors'' that would 
automatically establish an applicant's claim to extreme hardship. Each 
self-petitioner is encouraged to cite and document all the reasons that 
he or she believes that deportation would cause extreme hardship.
    Some precedent suspension of deportation cases have discussed the 
reasons why a particular applicant was found to have established that 
his or her deportation would cause extreme hardship. These reasons 
include the: (1) age of the person; (2) age and number of the person's 
children and their ability to speak the native language and adjust to 
life in another country; (3) serious illness of the person or his or 
her child which necessitates medical attention not adequately available 
in the foreign country; (4) person's inability to obtain adequate 
employment in the foreign country; (5) person's and the person's 
child's length of residence in the United States; (6) existence of 
other family members who will be legally residing in the United States; 
(7) irreparable harm that may arise as a result of disruption of 
education opportunities; and (8) adverse psychological impact of 
deportation.
    In some self-petitioning cases, the circumstances surrounding 
domestic abuse and the consequences of the abuse may cause the extreme 
hardship. These self-petitioners may wish to cite and provide evidence 
relating to some or all of the following areas, in addition to any 
other basis for believing that deportation would cause extreme 
hardship: (1) the nature and extent of the physical and psychological 
consequences of the battering or extreme cruelty; (2) the impact of the 
loss of access to the U.S. courts and criminal justice system 
(including, not limited to, the ability to obtain and enforce: orders 
of protection; criminal investigations and prosecutions; and family law 
proceedings or court orders regarding child support, maintenance, child 
custody and visitation); (3) the self-petitioner's and/or the self-
petitioner's child's need for social, medical, mental health, or other 
supportive services which would not be available or reasonably 
accessible in the foreign country; (4) the existence of laws, social 
practices, or customs in the foreign country that would penalize or 
ostracize the self-petitioner or the self-petitioner's child for having 
been the victim of abuse, for leaving the abusive situation, or for 
actions taken to stop the abuse; (5) the abuser's ability to travel to 
the foreign country and the ability and willingness of foreign 
authorities to protect the self-petitioner and/or the self-petitioner's 
child from future abuse; and (6) the likelihood that the abuser's 
family, friends, or others acting on behalf of the abuser in the 
foreign country would physically or psychologically harm the self-
petitioner and/or the self-petitioner's child.
    The Service will develop and provide further interpretive guidance 
concerning the extreme hardship determination in self-petitioning cases 
to the Service officers who will adjudicate these self-petitions. This 
guidance is expected to be in the form of implementing directives, 
training courses, the field handbook currently under development by the 
Service, and other policy and procedural directives.

[[Page 13068]]


Good Faith Marriage

    Section 40701 of the Crime Bill requires a self-petitioning spouse 
to show that he or she entered into the marriage to the abusive citizen 
or lawful permanent resident in good faith. This rule provides, 
therefore, that a self-petition cannot be approved if the self-
petitioner married the abuser solely to obtain immigration benefits. A 
self-petitioning spouse who is not subject to the limitations imposed 
by IMFA need only provide a ``preponderance'' of evidence showing that 
he or she married in good faith. Persons who are subject to the IMFA 
restrictions may be required to meet a heavier burden of proof to 
establish that a marriage was entered into in good faith, as discussed 
previously in the section entitled ``Eligibility for Immigrant 
Classification.''
    The Act does not define a ``good-faith'' marriage or provide 
guidelines for evaluating the bona fides of a marriage; however, 
persons applying for immigration benefits based on a marriage are 
generally required to establish that they entered into the marriage in 
good faith, and a significant body of case law has developed concerning 
the interpretation of this requirement. It has long been held that a 
marriage that is entered into for the primary purpose of circumventing 
the immigration laws, referred to as a fraudulent or sham marriage, 
cannot be recognized as enabling a spouse to obtain immigration 
benefits. Lutwak v. United States, 344 U.S. 604 (1953) and Matter of 
Phillis, 15 I&N Dec. 385 (BIA 1975). A spousal petition will not be 
denied, however, solely because the spouses are not living together and 
the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332 (BIA 
1980). The key factor in determining whether a person entered into a 
marriage in good faith is whether he or she intended to establish a 
life together with the spouse at the time of the marriage. The person's 
conduct after marriage is relevant only to the extent that it bears 
upon his or her subjective state of mind at the time of the marriage. 
Separation from the other spouse, even shortly after the marriage took 
place, does not prove, by itself, that a marriage was not entered into 
in good faith. Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).
    This rule allows the submission of a variety of evidence to show a 
good-faith marriage. The self-petitioner should submit the best 
evidence available. Evidence of good faith at the time of marriage may 
include, but is not limited to, proof that one spouse has been listed 
as the other's spouse on insurance policies, property leases, income 
tax forms, or bank accounts; and testimony or other evidence regarding 
courtship, wedding ceremony, shared residence and experiences. Matter 
of Laureano, supra. Other types of readily available evidence might 
include the birth certificates of children born to the abuser and the 
spouse; police, medical, or court documents providing information about 
the relationship; and affidavits of persons with personal knowledge of 
the relationship.

Derivative Child Included in the Self-Petition

    Section 40701 of the Crime Bill allows any child of a self-
petitioning spouse to be derivatively included in the self-petition, if 
the child has not been classified as an immigrant based on his or her 
own self-petition. This rule allows a derivative child who has been 
included in a parent's petition to later file a self-petition, provided 
the child meets the self-petitioning requirements. It also allows a 
child who has been classified as an immigrant based on a petition filed 
by the abuser or another relative to be derivatively included in a 
parent's self-petition; including the child in the self-petition will 
not affect the validity of the petition submitted by the abuser or 
another relative.
    No separate petition is necessary for derivative classification, 
and the child is not required to have been the victim of abuse. The 
derivative child also does not need to have lived in the United States 
or to otherwise satisfy the criteria for filing a self-petition. He or 
she, however, must meet the requirements for immigrant visa issuance 
abroad or adjustment of status in the United States. An eligible child, 
including a child born after the self-petition was approved, may be 
added to a self-petitioning spouse's petition when the self-petitioner 
applies for an immigrant visa abroad or adjustment of status in the 
United States. A new petition will not be required.
    This rule further specifies that a derivative child need not be the 
child of the abuser, but must qualify as the self-petitioning spouse's 
child under the definition of ``child'' contained in section 101(b)(1) 
of the Act. The statutory definition includes certain children born in 
or out of wedlock, and certain legitimated, adopted, and stepchildren. 
It also requires a child to be unmarried and less than 21 years old. 
This rule requires a derivative child to continue to be a ``child'' 
until he or she becomes a lawful permanent resident based on the 
derivative classification. A derivative son or daughter who is married 
or more than 21 years old will not be issued an immigrant visa or 
granted adjustment of status as a derivative child.
    Since derivative status is based solely on the relationship to the 
principal self-petitioner, the rule also provides that the derivative 
child can be granted lawful permanent residence only if the child is 
accompanying or following-to-join the self-petitioner. No derivative 
benefit can be granted if the principal self-petitioner does not become 
a lawful permanent resident.
    This rule does not require the submission of documentary evidence 
of the derivative relationship with the self-petition. Such documents 
must be submitted, however, when the child applies for an immigrant 
visa abroad or adjustment of status to that of a lawful permanent 
resident of the United States based on the derivative relationship. 
Primary evidence of a parent-child relationship has been previously 
discussed under ``Child of a Citizen or Lawful Permanent Resident.'' 
The Service's regulations at 8 CFR 204.1 and 204.2 provide additional 
information concerning primary or secondary supporting documentation of 
a parent-child relationship. Other types of evidence not specifically 
discussed in this rule or the Service regulations may also be 
submitted; the Service will consider any relevant credible evidence.

Evidence in General

    In accordance with the provisions of section 40701 of the Crime 
Bill, this rule provides that the Service will consider all credible 
evidence submitted with the application before reaching a decision. It 
also states that the Service will determine what evidence is credible 
and what weight to give to this evidence.
    Generally, more weight will be given to primary evidence and 
evidence provided in court documents, medical reports, police reports, 
and other official documents. Self-petitioners, therefore, are strongly 
encouraged to submit this type of evidence whenever possible. Self-
petitioners who submit affidavits are urged, but not required, to 
provide affidavits from more than one person. Other forms of 
documentary evidence may also be submitted, including evidence that has 
not been discussed in this rule or identified in the Service 
regulations.
    The Service's regulations at 8 CFR 103.2 and 204.1(f) provide 
detailed information about the requirements applicable to supporting 
documentation. An ordinary legible photocopy of any supporting document 
may be submitted with a petition, although the Service reserves the 
right to require presentation of the original

[[Page 13069]]
document. An original document requested by the Service will be 
returned to the petitioner when it is no longer needed. Original 
documents submitted by the petitioner but not requested by the Service 
will remain a part of the record. Each foreign language document must 
be accompanied by an English translation that has been certified by a 
competent translator.

Proper Filing and Priority Dates

    This rule requires self-petitioners to complete Form I-360, 
Petition for Amerasian, Widow(er) or Special Immigrant. As directed in 
8 CFR 103.2(a)(2), the person filing the self-petition must sign the 
Form I-360. A parent or guardian, however, may sign the petition for a 
child who is less than 14 years of age. Any self-petitioner may be 
represented by an attorney or accredited representative as described in 
8 CFR 103.2(a)(3), if he or she so chooses.
    Each self-petition must be accompanied by the fee required by 8 CFR 
103.7(b)(1). A self-petitioner who is unable to pay the prescribed fee 
may request a fee waiver under the provisions of 8 CFR 103.7(c). The 
self-petition should also be accompanied by the documentary evidence 
specified in this rule.
    Under the provisions of this rule, a self-petition filed 
concurrently with a Form I-485, Application to Register Permanent 
Residence or Adjust Status, may be filed at the office having 
jurisdiction over the adjustment of status application. Other self-
petitions should be filed at the INS Service Center having jurisdiction 
over the self-petitioner's place of residence as described in the 
instructions to Form I-360. Since section 40701 of the Crime Bill 
requires all self-petitioners to be residing in the United States when 
the self-petition is filed, a self-petition cannot be filed at a United 
States consulate or embassy abroad. A self-petition also cannot be 
filed at a Service office overseas. Consular officials and Service 
officers overseas have not been delegated the authority to approve a 
self-petition.
    In accordance with standard procedures, a self-petition received in 
a Service office will be stamped to show the time and date of actual 
receipt. It will be regarded as properly filed on that date, provided 
it is properly signed and executed, the required fee is attached or a 
fee waiver is granted, and it otherwise complies with the provisions of 
8 CFR 103.2. This rule provides that the priority date will be the date 
the self-petition is properly filed. A self-petitioner who has been the 
beneficiary of a visa petition filed by the abuser to accord the self-
petitioner immigrant classification as his or her spouse or child, 
however, will be allowed to transfer the visa petition priority date to 
the self-petition. The earlier priority date may be assigned without 
regard to the current validity of the visa petition. The burden of 
proof to establish the filing of the visa petition lies with the self-
petitioner, although the Service will attempt to verify a claimed 
filing through a search of the Service's computerized records or other 
records deemed appropriate by the adjudicating officer.

Decision

    If the preliminary decision on a properly filed self-petition is 
adverse to the self-petitioner, the self-petitioner will be provided 
with written notice of this fact and offered an opportunity to present 
additional information or arguments before a final decision is 
rendered. If the preliminary decision is based on derogatory 
information of which the self-petitioner is unaware, the self-
petitioner will also be offered an opportunity to rebut the derogatory 
information in accordance with the provisions of 8 CFR 103.2(b)(16).
    Each self-petitioner will be sent a written notice of the final 
decision on his or her self-petition. If the petition is denied, he or 
she will be informed in writing of the basis for the denial and of the 
right to appeal. This rule allows an adverse decision on a self-
petition to be appealed to the Associate Commissioner for Examinations 
in accordance with the provisions of 8 CFR 103.3.

Eligibility for Immigrant Visa Issuance or Adjustment of Status

    Approval of a self-petition does not guarantee immediate 
eligibility for immigrant visa issuance or adjustment of status to that 
of a lawful permanent resident of the United States. The beneficiary of 
an approved self-petition must meet several additional requirements 
before he or she will be found eligible for lawful permanent residence 
in the United States.
    Neither the Act nor this rule limits the overall number of self-
petitions that may be accepted and approved by the Service. Some 
persons who are the beneficiaries of approved self-petitions, however, 
will be forced to delay filing their applications for immigrant visa 
issuance or adjustment of status because sections 201 and 202 of the 
Act place certain limits on the number of qualified persons who may be 
granted lawful permanent residence during any single year. Self-
petitioners who are subject to these limitations are encouraged to file 
the self-petition and establish the earliest possible priority date, 
since the available immigrant visa numbers are allocated to qualified 
immigrant visa applicants and qualified adjustment of status applicants 
strictly in priority date order.
    Under the provisions of the Crime Bill, any self-petitioner who 
qualifies for immigrant classification as the spouse or child of an 
abusive citizen of the Untied States is regarded as an immediate 
relative of a U.S. citizen under section 201(b) of the Act and is not 
subject to direct numerical limitations. A qualified derivative child 
of a self-petitioning spouse of an abusive citizen of the United States 
is also considered to be an immediate relative under section 201(b) of 
the Act and is also exempted from these limitations. These self-
petitioners may apply for immigrant visa issuance abroad or adjustment 
of status to that of a lawful permanent resident of the United States 
without regard to numerical limitations.
    A self-petitioner who is the spouse or child of an abusive 
permanent resident of the United States, however, is subject to 
immigrant visa number limitations, as are the qualified derivative 
children of spouses of abusive permanent residents. These self-
petitioners and their derivative children are not eligible to apply for 
immigrant visa issuance or adjustment of status until their immigrant 
visa numbers have become immediately available. Visa numbers for these 
self-petitioners and their derivative children are considered 
immediately available only when the Department of State Bureau of 
Consular Affairs Visa Office Bulletin shows the priority date for the 
applicant's country of birth under the family-sponsored 2A second 
preference classification as ``current'' or lists a date that is 
earlier than the self-petitioner's priority date.
    In addition to meeting requirements concerning visa number 
availability, a self-petitioner who is applying for an immigrant visa 
at a U.S. consulate or embassy abroad must prove that he or she is not 
included in any of the classes of persons who, by law, cannot be 
admitted to the United States, or that any basis for inadmissibility 
has been waived. A person seeking immigrant visa issuance abroad may 
also be subject to the provisions of section 212(o) of the Act. This 
provision requires a person who was not in lawful nonimmigrant status 
on the day he or she last left the United States to remain outside the 
country for at least 90 days before obtaining an immigrant visa. An 
immigrant may lawfully travel to the

[[Page 13070]]
United States immediately after the visa is issued. A qualified 
immigrant visa holder becomes a lawful permanent resident upon 
admission to the United States.
    A self-petitioner who is seeking immigrant visa issuance abroad 
will be contacted by the Department of State's National Visa Center 
(NVC) when that office has received the approved self-petition from the 
Service and an immigrant visa number is available. Immigrant visa 
applicants should follow the instructions provided by NVC and the U.S. 
consulate or embassy processing their requests. Persons wishing further 
information about immigrant visa issuance abroad should contact the 
Department of State or a United States embassy or consulate abroad.
    The Act also allows certain persons who are physically present in 
the United States to adjust status to that of a lawful permanent 
resident of the United States. Like immigrant visa applicants, 
adjustment of status applicants must prove that they are eligible for 
immigrant classification. Each applicant must also be exempt from 
immigrant visa number limitations or show that an immigrant visa number 
is immediately available for him or her. An applicant must further 
prove that he or she is not included in any of the classes of persons 
who, by law, cannot be admitted to the United States, or that any basis 
for inadmissibility has been waived. Persons seeking adjustment of 
status must also meet the applicable requirements of section 245 of the 
Act. A qualified adjustment applicant becomes a lawful permanent 
resident upon approval of the adjustment of status application.
    Section 40701 of the Crime Bill does not provide adjustment of 
status benefits. Self-petitioners, however, may benefit from certain 
other provisions of the Act. One such provision is a recently enacted 
law that temporarily allows many previously ineligible persons to seek 
adjustment of status in the United States. This law, section 506(b) of 
the Department of Commerce, Justice, State, the Judiciary and Related 
Agencies Appropriations Act, 1995, Public Law 103-317, was enacted 
August 26, 1994. It lifts certain restrictions on adjustment of status 
under section 245 of the Act on applications granted before October 1, 
1997. Persons seeking the adjustment of status benefits of Public Law 
103-317 may be subject to a financial penalty, since the law requires 
most persons seeking adjustment of status under this provision to pay 
an additional sum in excess of the standard adjustment of status filing 
fee. Additional information concerning adjustment of status under 
Public Law 103-317 may be obtained by requesting Supplement A to Form 
I-485 from a local Service office.
    Certain restrictions on adjustment of status have not been waived 
by section 40701 of the Crime Bill and cannot be waived under Public 
Law 103-317. These restrictions include those imposed by section 245(d) 
of the Act, which prohibit the adjustment of status of a person who is 
a conditional resident under section 216 or 216A of the Act. The 
adjustment of status of a person last admitted to the United States as 
a K-1 finance(e) is also barred, unless the person is seeking 
adjustment as a result of the marriage to the United States citizen who 
filed the finance(e) petition. Section 245(d) of the Act similarly 
prohibits the adjustment of status of a person who was last admitted as 
the K-2 child of a finance(e) parent, unless the person is seeking 
adjustment as a result of his or her parent's marriage to the citizen 
who filed the finance(e) petition. A self-petitioner who last entered 
in K-1 or K-2 nonimmigrant status would be subject to these 
restrictions, as would his or her derivative children who last entered 
in K-2 nonimmigrant status, unless the abuser is also the citizen who 
had filed the finance(e) petition. The statutory language of section 
245(d) of the Act does not preclude a conditional resident, a person 
who last entered the United States with a finance(e) visa, or a person 
who last entered the country as a dependent child of a finance(e) from 
filing a self-petition and seeking immigrant visa issuance abroad.
    An application for adjustment of status may be filed concurrently 
with the self-petition, if the self-petitioner is exempt from immigrant 
visa number limitations or if an immigrant visa number would be 
immediately available if the self-petition was approved. Other self-
petitioners who wish to adjust status in the United States may file the 
self-petition separately and submit the adjustment of status 
application when their immigrant visa numbers become available. Self-
petitioners who would like more information about the requirements for 
adjustment of status in the United States may request Form I-485 from 
the service office serving their local area.

Conditions on Residency Under Section 216 of the Act

    Section 216 of the Act was enacted as part of IMFA to detect and 
deter immigration-related marriage fraud. It imposes conditions on the 
lawful permanent resident status of certain persons who obtain 
residency through marriage. A spouse or child may be subject to these 
restrictions if he or she becomes a lawful permanent resident based on 
a relationship created by a marriage entered into less than 2 years 
before residency is granted. The conditions on residency under section 
216 of the Act may be removed only upon fulfillment of certain 
requirements. A conditional resident who does not file a joint petition 
with the citizen or permanent resident spouse during the 90 days prior 
to the second anniversary of the date residency was granted may have 
residency status terminated. Section 216 of the Act also provides three 
waivers of the joint petitioning requirement. One waiver exempts a 
conditional resident from filing a joint petition if he or she has been 
battered by, or subjected to extreme cruelty committed by, the citizen 
or lawful permanent resident; or if his or her child has been battered 
by, or subjected to extreme cruelty committed by, the citizen or lawful 
permanent resident. The Service has determined that no useful purpose 
would be served by imposing the conditional residency requirements of 
section 216 of the Act on any self-petitioner; all self-petitioners 
would necessarily be eligible for waivers of the joint petitioning 
requirement. This rule provides, therefore, that the conditional 
residence requirements of section 216 of the Act will not apply to a 
person who obtains lawful permanent resident status based on an 
approved self-petition, regardless of the date of the marriage.

Employment Authorization

    Section 40701 of the Crime Bill does not direct the Service to 
provide employment authorization based solely on the filing or approval 
of a self-petition. A self-petitioner, however, may be eligible to 
apply for employment authorization under the existing provisions of 8 
CFR 274a.12. Qualified applicants who wish to request employment 
authorization should complete and file Form I-765, Application for 
Employment Authorization, according to the instructions provided with 
the form. A self-petitioner who substantiates that he or she is unable 
to pay the Form I-765 application fee may be granted a fee waiver in 
accordance with the provisions of 8 CFR 103.7(c).
    Many self-petitioners will qualify for employment authorization 
under 8 CFR 274a.12(c)(9). This provision allows a person who has 
properly filed an adjustment of status application under section 245 of 
the Act to request

[[Page 13071]]
employment authorization while the adjustment application is pending 
before the Service.
    Most other self-petitioners will be eligible to request voluntary 
departure prior to or after a deportation hearing for the reasons set 
forth in 8 CFR 242.5(a)(2) (v), (vi), or (viii), and may qualify for 
employment authorization based on the grant of voluntary departure. 
Voluntary departure may be granted under 8 CFR 242.5(a)(2)(v) to a 
person who lost his or her nonimmigrant student or exchange visitor 
status (F-1, F-2, J-1, or J-2 nonimmigrant classification) solely 
because a private bill had been introduced in his or her behalf. It may 
be granted under 8 CFR 242.5(a)(2)(vi) to a person who is admissible to 
the United States as an immigrant, and: (1) who is an immediate 
relative of a U.S. citizen; or (2) is otherwise exempt from the 
numerical limitation on immigrant visa issuance; or (3) has a priority 
date for an immigrant visa not more than 60 days later than the date 
shown in the latest Visa Office Bulletin and has applied for an 
immigrant visa at a United States Consulate which has accepted 
jurisdiction over the case; or (4) who is the beneficiary of an 
employment-based petition with a priority date earlier than August 9, 
1978, and who meets certain other requirements outlined in 8 CFR 
242.5(a)(2)(vi) (D) or (E). Also, voluntary departure may be granted 
under 8 CFR 242.5(a)(2)(viii) to a person in whose case the district 
director has determined there are compelling factors warranting a grant 
of voluntary departure. A person who has been granted voluntary 
departure for the reasons set forth in 8 CFR 242.5(a)(2) (v), (vi), or 
(viii) may be granted permission under 8 CFR 274a.12(c)(12) to be 
employed for the period of time prior to the date set for voluntary 
departure, if the person shows an economic need to work. Extensions of 
voluntary departure and employment authorization may also be requested. 
Requests for voluntary departure under 8 CFR 242.5(a)(2)(v), (vi), or 
(viii) may be made to the local Service office having jurisdiction over 
the applicant's place of residence. There is no application form or fee 
for requesting voluntary departure for these reasons, although a person 
requesting employment authorization on the basis of the voluntary 
departure grant will be required to file Form I-765 and to pay the Form 
I-765 application fee or to establish eligibility for a fee waiver.
    A person who has been placed in deferred action status, an act of 
administrative convenience to the Government that assigns a lower 
priority to the alien's removal from the United States, may also 
request employment authorization under 8 CFR 274a.12(c)(14) if the 
person shows an economic need to work. There is no application process 
or fee for placement in deferred action status, although a person 
requesting employment authorization on the basis of deferred action 
placement will be required to file Form I-765 and to pay the Form I-765 
application fee or to establish eligibility for a fee waiver.
    Furthermore, a self-petitioner would not be precluded from 
requesting the employment authorization benefits of any other provision 
of 8 CFR 274a.12 under which he or she may qualify.

Other Regulatory Changes

    In addition to making regulatory changes necessary to implement the 
provisions of section 40701 of the Crime Bill, this rule makes 
necessary grammatical and format changes to ensure consistency and 
clarity. It also makes technical changes by: (1) amending 8 CFR 
103.1(f)(3)(iii) to update regulatory and statutory references; (2) 
amending 8 CFR 103.1(f)(3)(iii) to eliminate provisions concerning the 
appeal of a denial of a petition for a Replenishment Agricultural 
Worker (RAW) under part 210a of the Act, since that program expired at 
the end of fiscal year 1993 without allowing any such petitions to be 
filed; (3) revising the headings of 8 CFR 204.1 and 8 CFR 204.2 to more 
accurately reflect the contents of the sections; (4) correcting a 
typographical error by replacing ``Form I-30'' with ``Form I-130'' in 8 
CFR 204.1(a); (5) removing 8 CFR 204.2(d), which discussed a program 
created by section 112 of the Immigration Act of 1990 to provide 
additional visa numbers to spouses and children of legalized aliens 
that ended September 30, 1994; and (6) amending 8 CFR 205.1 to reflect 
the requirements of 8 CFR 103.2(a)(7)(ii), which provides an automatic 
revocation of an approved petition when the remitter fails to pay the 
filing fee and associated service charge after the check or other 
financial instrument used to pay the filing fee is returned as not 
payable.

Family Well-Being

    This regulation will enhance family well-being by allowing 
qualified family members of citizens and lawful permanent residents to 
self-petition for immigrant classification if they are living in this 
country. These family members were formerly precluded from obtaining 
this benefit because the abuser refused to file the necessary relative 
visa petition.
    The Service's implementation of this rule as an interim rule, with 
provision for post-promulgation public comment, is based on the ``good 
cause'' exceptions found at 5 U.S.C. 553 (b)(3)(B) and (d)(3). 
Methodist Hospital of Sacramento, et al., v. Shalala, 38 F.3d 1225 
(D.C. Cir. 1994). The reasons and necessity for immediate 
implementation of this interim rule are as follows: The changes to the 
Act made by section 40701 of the Crime Bill became effective on January 
1, 1995. Immediate implementation of this rule will allow a qualified 
spouse or child of an abusive citizen or lawful permanent resident to 
immediately self-petition for immigrant classification. Prompt 
implementation will also allow a spouse or child who is filing based on 
the relationship to an abusive lawful permanent resident of the United 
States to establish a more favorable place on the immigrant visa number 
waiting list. Qualified self-petitioners are all residing in this 
country and are persons of good moral character. They have been 
prevented from obtaining immigrant classification in the past solely 
because their abusive spouse or parent withdrew or refused to file the 
necessary immigrant visa petition for them.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities because of the following factors. By permitting certain 
spouses and children to self-petition for immigrant classification, the 
rule will allow some individuals residing in the United States to be 
classified as immigrants based on the relationship to an abusive 
citizen or lawful permanent resident spouse or child. It will not 
affect small entities.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service to be a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), Regulatory Planning 
and Review, and the Office of Management and Budget has waived its 
review process under section 6(a)(3)(A).

Executive Order 12612

    The regulations adopted herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and

[[Page 13072]]
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Fees, Forms, Freedom of information, Privacy, 
Reporting and recordkeeping requirements, Surety bonds.

8 CFR Part 204

    Administrative practice and procedures, Aliens, Employment, 
Immigration, Petitions.

8 CFR Part 205

    Administrative practice and procedures, Aliens, Immigration, 
Petitions.

8 CFR Part 216

    Administrative practice and procedures, Aliens, Nonimmigrants, 
Passports and visas.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 1487, 
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.


Sec. 103.1  [Amended]

    2. Section 103.1 is amended by:
    a. Revising the reference in paragraph (f)(3)(iii)(C) to 
``Sec. 245.2 (a)(4) and (e) of this chapter'' to read ``section 103 of 
the Act of October 28, 1977'';
    b. Revising the reference in paragraph (f)(3)(iii)(K) to 
``Sec. 223.1 of this chapter'' to read ``8 CFR part 223'';
    c. Revising the reference in paragraph (f)(3)(iii)(L) to 
``Sec. 223a.4 of this chapter'' to read ``8 CFR part 223'';
    d. Revising the reference in paragraph (f)(3)(iii)(X) to 
``Sec. 204.1(b) of this chapter'' to read ``8 CFR 204.3'';
    e. Revising the reference in paragraph (f)(3)(iii)(Y) to 
``Sec. 204.1(b)(3) of this chapter'' to read ``8 CFR 204.3'';
    f. Revising the reference in paragraph (f)(3)(iii)(FF) to ``as 
permanent resident under Sec. 245.6 of this chapter'' to read ``of 
certain Cuban and Haitian nationals under section 202 of the 
Immigration Reform and Control Act of 1986''; and
    g. Removing paragraph (f)(3)(iii)(GG).
    3. Section 103.1 is amended by adding a new paragraph 
(f)(3)(iii)(GG), to read as follows:


Sec. 103.1  Delegations of authority.

* * * * *
    (f) * * *
    (3) * * *
    (iii) * * *
    (GG) A self-petition filed by a spouse or child based on the 
relationship to an abusive citizen or lawful permanent resident of the 
United States for classification under section 201(b)(2)(A)(i) of the 
Act or section 203(a)(2)(A) of the Act;
* * * * *
    4. Section 103.2 is amended by adding a new paragraph (b)(2)(iii), 
to read as follows:


Sec. 103.2  Applications, petitions, and other documents.

* * * * *
    (b) * * *
    (2) * * *
    (iii) Evidence provided with a self-petition filed by a spouse or 
child of abusive citizen or resident. The Service will consider any 
credible evidence relevant to a self-petition filed by a qualified 
spouse or child of an abusive citizen or lawful permanent resident 
under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not 
required to, demonstrate that preferred primary or secondary evidence 
is unavailable. The determination of what evidence is credible and the 
weight to be given that evidence shall be within the sole discretion of 
the Service.
* * * * *
    5. Section 103.2 is amended by revising the heading of paragraph 
(b)(17) and by adding three new sentences at the end of paragraph 
(b)(17), to read as follows:


Sec. 103.2  Applications, petitions, and other documents.

* * * * *
    (b) * * *
    (17) Verifying claimed citizenship or permanent resident status. * 
* * If a self-petitioner filing under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is 
unable to present primary or secondary evidence of the abuser's status, 
the Service will attempt to electronically verify the abuser's 
citizenship or immigration status from information contained in Service 
computerized records. Other Service records may also be reviewed at the 
discretion of the adjudicating officer. If the Service is unable to 
identify a record as relating to the abuser, or the record does not 
establish the abuser's immigration or citizenship status, the self-
petition will be adjudicated based on the information submitted by the 
self-petitioner.
* * * * *

PART 204--IMMIGRANT PETITIONS

    6. The authority citation for part 204 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 
1255; 8 CFR part 2.

    7. Section 204.1 is amended by revising the section heading, and by 
revising paragraph (a), to read as follows:


Sec. 204.1  General information about immediate relative and family-
sponsored petitions.

    (a) Types of petitions. Petitions may be filed for an alien's 
classification as an immediate relative under section 201(b) of the Act 
or as a preference immigrant under section 203(a) of the Act based on a 
qualifying relationship to a citizen or lawful permanent resident of 
the United States, as follows:
    (1) A citizen or lawful permanent resident of the United States 
petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act 
for a qualifying relative's classification as an immediate relative 
under section 201(b) of the Act or as a preference immigrant under 
section 203(a) of the Act must file a Form I-130, Petition for Alien 
Relative. These petitions are described in Sec. 204.2;
    (2) A widow or widower of a United States citizen self-petitioning 
under section 204(a)(1)(A)(ii) of the Act as an immediate relative 
under section 201(b) of the Act must file a Form I-360, Petition for 
Amerasian, Widow, or Special Immigrant. These petitions are described 
in Sec. 204.2;
    (3) A spouse or child of an abusive citizen or lawful permanent 
resident of the United States self-petitioning under section 
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act for classification as an immediate 
relative under section 201(b) of the Act or as a preference immigrant 
under section 203(a) of the Act must file a Form I-360, Petition for 
Amerasian,

[[Page 13073]]
Widow, or Special Immigrant. These petitions are described in 
Sec. 204.2;
    (4) A citizen of the United States seeking advanced processing of 
an orphan petition must file Form I-600A, Application for Advanced 
Processing of Orphan Petition. A citizen of the United States 
petitioning under section 204(a)(1)(A)(i) of the Act for classification 
of an orphan described in section 101(b)(1)(F) of the Act as an 
immediate relative under section 201(b) of the Act must file Form I-
600, Petition to Classify Orphan as an Immediate Relative. These 
applications and petitions are described in Sec. 204.3; and
    (5) Any person filing a petition under section 204(f) of the Act 
as, or on behalf of, an Amerasian for classification as an immediate 
relative under section 201(b) of the Act or as a preference immigrant 
under section 203(a)(1) or 203(a)(3) of the Act must file a Form I-360, 
Petition for Amerasian, Widow, or Special Immigrant. These petitions 
are described in Sec. 204.4.
* * * * *
    9. Section 204.1 is amended by revising paragraph (e)(1), to read 
as follows:


Sec. 204.1  General information about immediate relative and family-
sponsored petitions.

* * * * *
    (e) * * *
    (1) Petitioner or self-petitioner residing in the United States. 
The petition or self-petition must be filed with the Service office 
having jurisdiction over the place where the petitioner or self-
petitioner is residing. When the petition or self-petition is 
accompanied by an application for adjustment of status, the petition or 
self-petition may be filed with the Service office having jurisdiction 
over the beneficiary's or self-petitioner's place of residence.
* * * * *
    9. Section 204.1 is amended by adding two new sentences at the end 
of paragraph (e)(2), to read as follows:


Sec. 204.1  General information about immediate relative and family-
sponsored petitions.

* * * * *
    (e) * * *
    (2) * * * An overseas Service officer may not accept or approve a 
self-petition filed by the spouse or child of an abusive citizen or 
lawful permanent resident of the United States under section 
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with 
the Service office in the United States having jurisdiction over the 
self-petitioner's place of residence in the United States.
* * * * *
    10. Section 204.1 is amended by adding two new sentences at the end 
of paragraph (e)(3), to read as follows:


Sec. 204.1  General information about immediate relative and family-
sponsored petitions.

* * * * *
    (e) * * *
    (3) * * * A consular official may not accept or approve a self-
petition filed by the spouse or child of an abusive citizen or lawful 
permanent resident of the United States under section 
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 
204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with 
the Service office in the United States having jurisdiction over the 
self-petitioner's place of residence in the United States.
* * * * *
    11. Section 204.1 is amended by adding three new sentences at the 
end of paragraph (f)(1), to read as follows:


Sec. 204.1  General information about immediate relative and family-
sponsored petitions.

* * * * *
    (f) * * *
    (1) * * * The Service will consider any credible evidence relevant 
to a self-petition filed by a qualified spouse or child of an abusive 
citizen or lawful permanent resident under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. 
The self-petitioner may, but is not required to, demonstrate that 
preferred primary or secondary evidence is unavailable. The 
determination of what evidence is credible and the weight to be given 
that evidence shall be within the sole discretion of the Service.
* * * * *
    12. Section 204.1 is amended by adding a new paragraph (g)(3), to 
read as follows:


Sec. 204.1  General information about immediate relative and family-
sponsored petitions.

* * * * *
    (g) * * *
    (3) Evidence submitted with a self-petition. If a self-petitioner 
filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present 
primary or secondary evidence of the abuser's status, the Service will 
attempt to electronically verify the abuser's citizenship or 
immigration status from information contained in Service computerized 
records. Other Service records may also be reviewed at the discretion 
of the adjudicating officer. If the Service is unable to identify a 
record as relating to the abuser or the record does not establish the 
abuser's immigration or citizenship status, the self-petition will be 
adjudicated based on the information submitted by the self-petitioner.
 * * * * *
    13. Section 204.2 is amended by:
    a. Revising the section heading;
    b. Removing paragraph (d);
    c. Redesignating paragraph (c) as paragraph (d); and by
    d. Adding a new paragraph (c), to read as follows:


Sec. 204.2  Petitions for relatives, widows and widowers, and abused 
spouses and children.

 * * * * *
    (c) Self-petition by spouse of abusive citizen or lawful permanent 
resident. (1) Eligibility. (i) Basic eligibility requirements. A spouse 
may file a self-petition under section 204(a)(1)(A)(iii) or 
204(a)(1)(B)(ii) of the Act for his or her classification as an 
immediate relative or as a preference immigrant if he or she:
    (A) Is the spouse of a citizen or lawful permanent resident of the 
United States;
    (B) Is eligible for immigrant classification under section 
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
    (C) Is residing in the United States;
    (D) Has resided in the United States with the citizen or lawful 
permanent resident spouse;
    (E) Has been battered by, or has been the subject of extreme 
cruelty perpetrated by, the citizen or lawful permanent resident during 
the marriage; or is that parent of a child who has been battered by, or 
has been the subject of extreme cruelty perpetrated by, the citizen or 
lawful permanent resident during the marriage;
    (F) Is a person of good moral character;
    (G) Is a person whose deportation would result in extreme hardship 
to himself, herself, or his or her child; and
    (H) Entered into the marriage to the citizen or lawful permanent 
resident in good faith.
    (ii) Legal status of the marriage. The self-petitioning spouse must 
be legally married to the abuser when the petition is properly filed 
with the Service. A spousal self-petition must be denied if the 
marriage to the abuser legally ended through annulment, death, or 
divorce before that time. After the self-petition has been properly 
filed, the legal termination of the marriage will have no effect on the 
decision made on the self-

[[Page 13074]]
petition. The self-petitioner's remarriage, however, will be a basis 
for the denial of a pending self-petition.
    (iii) Citizenship or immigration status of the abuser. The abusive 
spouse must be a citizen of the United States or a lawful permanent 
resident of the United States when the petition is filed and when it is 
approved. Changes in the abuser's citizenship or lawful permanent 
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an 
abusive lawful permanent resident spouse will not be automatically 
upgraded to immediate relative status. The self-petitioner would not be 
precluded, however, from filing a new self-petition for immediate 
relative classification after the abuser's naturalization, provided the 
self-petitioner continues to meet the self-petitioning requirements.
    (iv) Eligibility for immigrant classification. A self-petitioner is 
required to comply with the provisions of section 204(c) of the Act, 
section 204(g) of the Act, and section 204(a)(2) of the Act.
    (v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition 
is filed. The self-petitioner is not required to be living with the 
abuser when the petition is filed, but he or she must have resided with 
the abuser in the United States in the past.
    (vi) Battery or extreme cruelty. For the purpose of this chapter, 
the phrase ``was battered by or was the subject of extreme cruelty'' 
includes, but is not limited to, being the victim of any act or 
threatened act of violence, including any forceful detention, which 
results or threatens to result in physical or mental injury. 
Psychological or sexual abuse or exploitation, including rape, 
molestation, incest (if the victim is a minor), or forced prostitution 
shall be considered acts of violence. Other abusive actions may also be 
acts of violence under certain circumstances, including acts that, in 
and of themselves, may not initially appear violent but that are a part 
of an overall pattern of violence. The qualifying abuse must have been 
committed by the citizen or lawful permanent resident spouse, must have 
been perpetrated against the self-petitioner or the self-petitioner's 
child, and must have taken place during the self-petitioner's marriage 
to the abuser.
    (vii) Good moral character. A self-petitioner will be found to lack 
good moral character if he or she is a person described in section 
101(f) of the Act. Extenuating circumstances may be taken into account 
if the person has not been convicted of an offense or offenses but 
admits to the commission of an act or acts that could show a lack of 
good moral character under section 101(f) of the Act. A person who was 
subjected to abuse in the form of forced prostitution or who can 
establish that he or she was forced to engage in other behavior that 
could render the person excludable under section 212(a) of the Act 
would not be precluded from being found to be a person of good moral 
character, provided the person has not been convicted for the 
commission of the offense or offenses in a court of law. A self-
petitioner will also be found to lack good moral character, unless he 
or she establishes extenuating circumstances, if he or she willfully 
failed or refused to support dependents; or committed unlawful acts 
that adversely reflect upon his or her moral character, or was 
convicted or imprisoned for such acts, although the acts do not require 
an automatic finding of lack of good moral character. A self-
petitioner's claim of good moral character will be evaluated on a case-
by-case basis, taking into account the provisions of section 101(f) of 
the Act and the standards of the average citizen in the community. If 
the results of record checks conducted prior to the issuance of an 
immigrant visa or approval of an application for adjustment of status 
disclose that the self-petitioner is no longer a person of good moral 
character or that he or she has not been a person of good moral 
character in the past, a pending self-petition will be denied or the 
approval of a self-petition will be revoked.
    (viii) Extreme hardship. The Service will consider all credible 
evidence of extreme hardship submitted with a self-petition, including 
evidence of hardship arising from circumstances surrounding the abuse. 
The extreme hardship claim will be evaluated on a case-by-case basis 
after a review of the evidence in the case. Self-petitioners are 
encouraged to cite and document all applicable factors, since there is 
no guarantee that a particular reason or reasons will result in a 
finding that deportation would cause extreme hardship. Hardship to 
persons other than the self-petitioner or the self-petitioner's child 
cannot be considered in determining whether a self-petitioning spouse's 
deportation would cause extreme hardship.
    (ix) Good faith marriage. A spousal self-petition cannot be 
approved if the self-petitioner entered into the marriage to the abuser 
for the primary purpose of circumventing the immigration laws. A self-
petition will not be denied, however, solely because the spouses are 
not living together and the marriage is no longer viable.
    (2) Evidence for a spousal self-petition. (i) General. Self-
petitioners are encouraged to submit primary evidence whenever 
possible. The Service will consider, however, any credible evidence 
relevant to the petition. The determination of what evidence is 
credible and the weight to be given that evidence shall be within the 
sole discretion of the Service.
    (ii) Relationship. A self-petition filed by a spouse must be 
accompanied by evidence of citizenship of the United States citizen or 
proof of the immigration status of the lawful permanent resident 
abuser. It must also be accompanied by evidence of the relationship. 
Primary evidence of a marital relationship is a marriage certificate 
issued by civil authorities, and proof of the termination of all prior 
marriages, if any, of both the self-petitioner and the abuser. If the 
self-petition is based on a claim that the self-petitioner's child was 
battered or subjected to extreme cruelty committed by the citizen or 
lawful permanent resident spouse, the self-petition should also be 
accompanied by the child's birth certificate or other evidence showing 
the relationship between the self-petitioner and the abused child.
    (iii) Residence. One or more documents may be submitted showing 
that the self-petitioner and the abuser have resided together in the 
United States. One or more documents may also be submitted showing that 
the self-petitioner is residing in the United States when the self-
petition is filed. Employment records, utility receipts, school 
records, hospital or medical records, birth certificates of children 
born in the United States, deeds, mortgages, rental records, insurance 
policies, affidavits or any other type of relevant credible evidence of 
residency may be submitted.
    (iv) Abuse. Evidence of abuse may include, but is not limited to, 
reports and affidavits from police, judges and other court officials, 
medical personnel, school officials, clergy, social workers, and other 
social service agency personnel. Persons who have obtained an order of 
protection against the abuser or have taken other legal steps to end 
the abuse are strongly encouraged to submit copies of the relating 
legal documents. Evidence that the abuse victim sought safe-haven in a 
battered women's shelter or similar refuge may be relevant, as may a 
combination of documents such as a photograph of the visibly injured 
self-petitioner supported by affidavits. Other forms of credible 
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to

[[Page 13075]]
establish a pattern of abuse and violence and to support a claim that 
qualifying abuse also occurred.
    (v) Good moral character. Primary evidence of the self-petitioner's 
good moral character is the self-petitioner's affidavit. The affidavit 
should be accompanied by a local police clearance or a state-issued 
criminal background check from each locality or state in the United 
States in which the self-petitioner has resided for six or more months 
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during 
this time should submit a police clearance, criminal background check, 
or similar report issued by the appropriate authority in each foreign 
country in which he or she resided for six or more months during the 3-
year period immediately preceding the filing of the self-petition. If 
police clearances, criminal background checks, or similar reports are 
not available for some or all locations, the self-petitioner may 
include an explanation and submit other evidence with his or her 
affidavit. The Service will consider other credible evidence of good 
moral character, such as affidavits from responsible persons who can 
knowledgeably attest to the self-petitioner's good moral character.
    (vi) Extreme hardship. Evidence of extreme hardship may include 
affidavits, birth certificates of children, medical reports, protection 
orders and other court documents, police reports, and other relevant 
credible evidence.
    (vii) Good faith marriage. Evidence of good faith at the time of 
marriage may include, but is not limited to, proof that one spouse has 
been listed as the other's spouse on insurance policies, property 
leases, income tax forms, or bank accounts; and testimony or other 
evidence regarding courtship, wedding ceremony, shared residence and 
experiences. Other types of readily available evidence might include 
the birth certificates of children born to the abuser and the spouse; 
police, medical, or court documents providing information about the 
relationship; and affidavits of persons with personal knowledge of the 
relationship. All credible relevant evidence will be considered.
    (3) Decision on and disposition of the petition. (i) Petition 
approved. If the self-petitioning spouse will apply for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the self-petitioner will apply for an 
immigrant visa abroad, the approved self-petition will be forwarded to 
the Department of State's National Visa Center.
    (ii) Notice of intent to deny. If the preliminary decision on a 
properly filed self-petition is adverse to the self-petitioner, the 
self-petitioner will be provided with written notice of this fact and 
offered an opportunity to present additional information or arguments 
before a final decision is rendered. If the adverse preliminary 
decision is based on derogatory information of which the self-
petitioner is unaware, the self-petitioner will also be offered an 
opportunity to rebut the derogatory information in accordance with the 
provisions of 8 CFR 103.2(b)(16).
    (iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial 
and of the right to appeal the decision.
    (4) Derivative beneficiaries. A child accompanying or following-to-
join the self-petitioning spouse may be accorded the same preference 
and priority date as the self-petitioner without the necessity of a 
separate petition, if the child has not been classified as an immigrant 
based on his or her own self-petition. A derivative child who had been 
included in a parent's self-petition may later file a self-petition, 
provided the child meets the self-petitioning requirements. A child who 
has been classified as an immigrant based on a petition filed by the 
abuser or another relative may also be derivatively included in a 
parent's self-petition. The derivative child must be unmarried, less 
than 21 years old, and otherwise qualify as the self-petitioner's child 
under section 101(b)(1)(F) of the Act until he or she becomes a lawful 
permanent resident based on the derivative classification.
    (5) Name change. If the self-petitioner's current name is different 
than the name shown on the documents, evidence of the name change (such 
as the petitioner's marriage certificate, legal document showing name 
change, or other similar evidence) must accompany the self-petition.
* * * * *
    14. Section 204.2 is amended by redesignating paragraphs (e), (f), 
(g), and (h), as paragraphs (f), (g), (h), and (i), respectively; and 
by adding a new paragraph (e), to read as follows:


Sec. 204.2  Petitions for relatives, widows and widowers, and abused 
spouses and children.

* * * * *
    (e) Self-petition by child of abusive citizen or lawful permanent 
resident. (1) Eligibility. (i) A child may file a self-petition under 
section 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act if he or she:
    (A) Is the child of a citizen or lawful permanent resident of the 
United States;
    (B) Is eligible for immigrant classification under section 
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
    (C) Is residing in the United States;
    (D) Has resided in the United States with the citizen or lawful 
permanent resident parent;
    (E) Has been battered by, or has been the subject of extreme 
cruelty perpetrated by, the citizen or lawful permanent resident parent 
while residing with that parent;
    (F) Is a person of good moral character; and
    (G) Is a person whose deportation would result in extreme hardship 
to himself or herself.
    (ii) Parent-child relationship to the abuser. The self-petitioning 
child must be unmarried, less than 21 years of age, and otherwise 
qualify as the abuser's child under the definition of child contained 
in section 101(b)(1) of the Act when the petition is filed and when it 
is approved. Termination of the abuser's parental rights or a change in 
legal custody does not alter the self-petitioning relationship provided 
the child meets the requirements of section 101(b)(1) of the Act.
    (iii) Citizenship or immigration status of the abuser. The abusive 
parent must be a citizen of the United States or a lawful permanent 
resident of the United States when the petition is filed and when it is 
approved. Changes in the abuser's citizenship or lawful permanent 
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an 
abusive lawful permanent resident will not be automatically upgraded to 
immediate relative status. The self-petitioning child would not be 
precluded, however, from filing a new self-petition for immediate 
relative classification after the abuser's naturalization, provided the 
self-petitioning child continues to meet the self-petitioning 
requirements.
    (iv) Eligibility for immigrant classification. A self-petitioner is 
required to comply with the provisions of section 204(c) of the Act, 
section 204(g) of the Act, and section 204(a)(2) of the Act.
    (v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition 
is filed. The self-petitioner is not required to be living with the 
abuser when the petition is filed, but he or she must have resided with 
the abuser in the United States in the past.
    (vi) Battery or extreme cruelty. For the purpose of this chapter, 
the phrase ``was

[[Page 13076]]
battered by or was the subject of extreme cruelty'' includes, but is 
not limited to, being the victim of any act or threatened act of 
violence, including any forceful detention, which results or threatens 
to result in physical or mental injury. Psychological or sexual abuse 
or exploitation, including rape, molestation, incest (if the victim is 
a minor), or forced prostitution shall be considered acts of violence. 
Other abusive actions may also be acts of violence under certain 
circumstances, including acts that, in and of themselves, may not 
initially appear violent but are a part of an overall pattern of 
violence. The qualifying abuse must have been committed by the citizen 
or lawful permanent resident parent, must have been perpetrated against 
the self-petitioner, and must have taken place while the self-
petitioner was residing with the abuser.
    (vii) Good moral character. A self-petitioner will be found to lack 
good moral character if he or she is a person described in section 
101(f) of the Act. Extenuating circumstances may be taken into account 
if the person has not been convicted of an offense or offenses but 
admits to the commission of an act or acts that could show a lack of 
good moral character under section 101(f) of the Act. A person who was 
subjected to abuse in the form of forced prostitution or who can 
establish that he or she was forced to engage in other behavior that 
could render the person excludable under section 212(a) of the Act 
would not be precluded from being found to be a person of good moral 
character, provided the person has not been convicted for the 
commission of the offense or offenses in a court of law. A self-
petitioner will also be found to lack good moral character, unless he 
or she establishes extenuating circumstances, if he or she willfully 
failed or refused to support dependents; or committed unlawful acts 
that adversely reflect upon his or her moral character, or was 
convicted or imprisoned for such acts, although the acts do not require 
an automatic finding of lack of good moral character. A self-
petitioner's claim of good moral character will be evaluated on a case-
by-case basis, taking into account the provisions of section 101(f) of 
the Act and the standards of the average citizen in the community. If 
the results of record checks conducted prior to the issuance of an 
immigrant visa or approval of an application for adjustment of status 
disclose that the self-petitioner is no longer a person of good moral 
character or that he or she has not been a person of good moral 
character in the past, a pending self-petition will be denied or the 
approval of a self-petition will be revoked.
    (viii) Extreme hardship. The Service will consider all credible 
evidence of extreme hardship submitted with a self-petition, including 
evidence of hardship arising from circumstances surrounding the abuse. 
The extreme hardship claim will be evaluated on a case-by-case basis 
after a review of the evidence in the case. Self-petitioners are 
encouraged to cite and document all applicable factors, since there is 
no guarantee that a particular reason or reasons will result in a 
finding that deportation would cause extreme hardship. Hardship to 
persons other than the self-petitioner cannot be considered in 
determining whether a self-petitioning child's deportation would cause 
extreme hardship.
    (2) Evidence for a child's self-petition. (i) General. Self-
petitioners are encouraged to submit primary evidence whenever 
possible. The Service will consider, however, any credible evidence 
relevant to the petition. The determination of what evidence is 
credible and the weight to be given that evidence shall be within the 
sole discretion of the Service.
    (ii) Relationship. A self-petition filed by a child must be 
accompanied by evidence of citizenship of the United States citizen or 
proof of the immigration status of the lawful permanent resident 
abuser. It must also be accompanied by evidence of the relationship. 
Primary evidence of the relationship between:
    (A) The self-petitioning child and an abusive biological mother is 
the self-petitioner's birth certificate issued by civil authorities;
    (B) A self-petitioning child who was born in wedlock and an abusive 
biological father is the child's birth certificate issued by civil 
authorities, the marriage certificate of the child's parents, and 
evidence of legal termination of all prior marriages, if any;
    (C) A legitimated self-petitioning child and an abusive biological 
father is the child's birth certificate issued by civil authorities, 
and evidence of the child's legitimation;
    (D) A self-petitioning child who was born out of wedlock and an 
abusive biological father is the child's birth certificate issued by 
civil authorities showing the father's name, and evidence that a bona 
fide parent-child relationship has been established between the child 
and the parent;
    (E) A self-petitioning stepchild and an abusive stepparent is the 
child's birth certificate issued by civil authorities, the marriage 
certificate of the child's parent and the stepparent showing marriage 
before the stepchild reached 18 years of age, and evidence of legal 
termination of all prior marriages of either parent, if any; and
    (F) An adopted self-petitioning child and an abusive adoptive 
parent is an adoption decree showing that the adoption took place 
before the child reached 16 years of age, and evidence that the child 
has been residing with and in the legal custody of the abusive adoptive 
parent for at least 2 years.
    (iii) Residence. One or more documents may be submitted showing 
that the self-petitioner and the abuser have resided together in the 
United States. One or more documents may also be submitted showing that 
the self-petitioner is residing in the United States when the self-
petition is filed. Employment records, school records, hospital or 
medical records, rental records, insurance policies, affidavits or any 
other type of relevant credible evidence of residency may be submitted.
    (iv) Abuse. Evidence of abuse may include, but is not limited to, 
reports and affidavits from police, judges and other court officials, 
medical personnel, school officials, clergy, social workers, and other 
social service agency personnel. Persons who have obtained an order of 
protection against the abuser or taken other legal steps to end the 
abuse are strongly encouraged to submit copies of the relating legal 
documents. Evidence that the abuse victim sought safe-haven in a 
battered women's shelter or similar refuge may be relevant, as may a 
combination of documents such as a photograph of the visibly injured 
self-petitioner supported by affidavits. Other types of credible 
relevant evidence will also be considered. Documentary proof of non-
qualifying abuse may only be used to establish a pattern of abuse and 
violence and to support a claim that qualifying abuse also occurred.
    (v) Good moral character. Primary evidence of the self-petitioner's 
good moral character is the self-petitioner's affidavit. The affidavit 
should be accompanied by a local police clearance or a state-issued 
criminal background check from each locality or state in the United 
States in which the self-petitioner has resided for six or more months 
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during 
this time should submit a police clearance, criminal background check, 
or similar report issued by the appropriate authority in the foreign 
country in which he or she resided for six or more

[[Page 13077]]
months during the 3-year period immediately preceding the filing of the 
self-petition. If police clearances, criminal background checks, or 
similar reports are not available for some or all locations, the self-
petitioner may include an explanation and submit other evidence with 
his or her affidavit. The Service will consider other credible evidence 
of good moral character, such as affidavits from responsible persons 
who can knowledgeably attest to the self-petitioner's good moral 
character. A child who is less than 14 years of age is presumed to be a 
person of good moral character and is not required to submit affidavits 
of good moral character, police clearances, criminal background checks, 
or other evidence of good moral character.
    (vi) Extreme hardship. Evidence of extreme hardship may include 
affidavits, medical reports, protection orders and other court 
documents, police reports, and other relevant credible evidence.
    (3) Decision on and disposition of the petition. (i) Petition 
approved. If the self-petitioning child will apply for adjustment of 
status under section 245 of the Act, the approved petition will be 
retained by the Service. If the self-petitioner will apply for an 
immigrant visa abroad, the approved self-petition will be forwarded to 
the Department of State's National Visa Center.
    (ii) Notice of intent to deny. If the preliminary decision on a 
properly filed self-petition is adverse to the self-petitioner, the 
self-petitioner will be provided with written notice of this fact and 
offered an opportunity to present additional information or arguments 
before a final decision is rendered. If the adverse preliminary 
decision is based on derogatory information of which the self-
petitioner is unaware, the self-petitioner will also be offered an 
opportunity to rebut the derogatory information in accordance with the 
provisions of 8 CFR 103.2(b)(16).
    (iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial 
and of the right to appeal the decision.
    (4) Derivative beneficiaries. A child of a self-petitioning child 
is not eligible for derivative classification and must have a petition 
filed on his or her behalf if seeking immigrant classification.
    (5) Name change. If the self-petitioner's current name is different 
than the name shown on the documents, evidence of the name change (such 
as the petitioner's marriage certificate, legal document showing the 
name change, or other similar evidence) must accompany the self-
petition.
* * * * *


Sec. 204.2  [Amended]

    15. Section 204.2 is amended in newly designated paragraph 
(g)(2)(iv) by revising the reference to ``paragraphs (f)(2)(ii) and 
(f)(2)(iii) of this section'' to read ``paragraphs (g)(2)(ii) and 
(g)(2)(iii) of this section''.
    16. Section 204.2 is amended by adding five new sentences at the 
end of the newly redesignated paragraph (h)(2), to read as follows:


Sec. 204.2  Petitions for relatives, widows and widowers, and abused 
spouses and children.

* * * * *
    (h) * * *
    (2) * * * A self-petition filed under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act based 
on the relationship to an abusive citizen or lawful permanent resident 
of the United States will not be regarded as a reaffirmation or 
reinstatement of a petition previously filed by the abuser. A self-
petitioner who has been the beneficiary of a visa petition filed by the 
abuser to accord the self-petitioner immigrant classification as his or 
her spouse or child, however, will be allowed to transfer the visa 
petition's priority date to the self-petition. The visa petition's 
priority date may be assigned to the self-petition without regard to 
the current validity of the visa petition. The burden of proof to 
establish the existence of and the filing date of the visa petition 
lies with the self-petitioner, although the Service will attempt to 
verify a claimed filing through a search of the Service's computerized 
records or other records deemed appropriate by the adjudicating 
officer. A new self-petition filed under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act 
will not be regarded as a reaffirmation or reinstatement of the 
original self-petition unless the prior and the subsequent self-
petitions are based on the relationship to the same abusive citizen or 
lawful permanent resident of the United States.
* * * * *
    17. Section 204.2 is amended by adding a new sentence at the end of 
the newly redesignated paragraph (i)(3), to read as follows:


Sec. 204.2  Petitions for relatives, widows and widowers, and abused 
spouses and children.

* * * * *
    (i) * * *
    (3) * * * A self-petition filed under section 204(a)(1)(B)(ii) or 
204(a)(1)(B)(iii) of the Act based on the relationship to an abusive 
lawful permanent resident of the United States for classification under 
section 203(a)(2) of the Act will not be affected by the abuser's 
naturalization and will not be automatically converted to a petition 
for immediate relative classification.

PART 205--REVOCATION OF APPROVAL OF PETITIONS

    18. The authority citation for part 205 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, 
and 1186a.

    19. Section 205.1 is revised to read as follows:


Sec. 205.1  Automatic revocation.

    (a) Reasons for automatic revocation. The approval of a petition or 
self-petition made under section 204 of the Act and in accordance with 
part 204 of this chapter is revoked as of the date of approval:
    (1) If the Secretary of State shall terminate the registration of 
the beneficiary pursuant to the provisions of section 203(e) of the Act 
before October 1, 1991, or section 203(g) of the Act on or after 
October 1, 1994;
    (2) If the filing fee and associated service charge are not paid 
within 14 days of the notification to the remitter that his or her 
check or other financial instrument used to pay the filing fee has been 
returned as not payable; or
    (3) If any of the following circumstances occur before the 
beneficiary's or self-petitioner's journey to the United States 
commences or, if the beneficiary or self-petitioner is an applicant for 
adjustment of status to that of a permanent resident, before the 
decision on his or her adjustment application becomes final:
    (i) Immediate relative and family-sponsored petitions, other than 
Amerasian petitions. (A) Upon written notice of withdrawal filed by the 
petitioner or self-petitioner with any officer of the Service who is 
authorized to grant or deny petitions.
    (B) Upon the death of the beneficiary or the self-petitioner.
    (C) Upon the death of the petitioner, unless the Attorney General 
in his or her discretion determines that for humanitarian reasons 
revocation would be inappropriate.
    (D) Upon the legal termination of the marriage when a citizen or 
lawful permanent resident of the United States has petitioned to accord 
his or her spouse immediate relative or family-sponsored preference 
immigrant classification under section 201(b) or section 203(a)(2) of 
the Act. The

[[Page 13078]]
approval of a spousal self-petition based on the relationship to an 
abusive citizen or lawful permanent resident of the United States filed 
under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act, 
however, will not be revoked solely because of the termination of the 
marriage to the abuser.
    (E) Upon the remarriage of the spouse of an abusive citizen or 
lawful permanent resident of the United States when the spouse has 
self-petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of 
the Act for immediate relative classification under section 201(b) of 
the Act or for preference classification under section 203(a)(2) of the 
Act.
    (F) Upon a child reaching the age of 21, when he or she has been 
accorded immediate relative status under section 201(b) of the Act. A 
petition filed on behalf of a child under section 204(a)(1)(A)(i) of 
the Act or a self-petition filed by a child of an abusive United States 
citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain 
valid for the duration of the relationship to accord preference status 
under section 203(a)(1) of the Act if the beneficiary remains 
unmarried, or to accord preference status under section 203(a)(3) of 
the Act if he or she marries.
    (G) Upon the marriage of a child, when he or she has been accorded 
immediate relative status under section 201(b) of the Act. A petition 
filed on behalf of the child under section 204(a)(1)(A)(i) of the Act 
or a self-petition filed by a child of an abusive United States citizen 
under section 204(a)(1)(A)(iv) of the Act, however, will remain valid 
for the duration of the relationship to accord preference status under 
section 203(a)(3) of the Act if he or she marries.
    (H) Upon the marriage of a person accorded preference status as a 
son or daughter of a United States citizen under section 203(a)(1) of 
the Act. A petition filed on behalf of the son or daughter, however, 
will remain valid for the duration of the relationship to accord 
preference status under section 203(a)(3) of the Act.
    (I) Upon the marriage of a person accorded status as a son or 
daughter of a lawful permanent resident alien under section 203(a)(2) 
of the Act.
    (J) Upon legal termination of the petitioner's status as an alien 
admitted for lawful permanent residence in the United States unless the 
petitioner became a United States citizen. The provisions of 8 CFR 
204.2(i)(3) shall apply if the petitioner became a United States 
citizen.
    (ii) Petition for Pub. L. 97-359 Amerasian. (A) Upon formal notice 
of withdrawal filed by the petitioner with the officer who approved the 
petition.
    (B) Upon the death of the beneficiary.
    (C) Upon the death or bankruptcy of the sponsor who executed Form 
I-361, Affidavit of Financial Support and Intent to Petition for Legal 
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition may 
be filed in the beneficiary's behalf with the documentary evidence 
relating to sponsorship and, in the case of a beneficiary under 18 
years of age, placement. If the new petition is approved, it will be 
given the priority date of the previously approved petition.
    (D) Upon the death or substitution of the petitioner if other than 
the beneficiary or sponsor. However, if the petitioner dies or no 
longer desires or is able to proceed with the petition, and another 
person 18 years of age or older, an emancipated minor, or a corporation 
incorporated in the United States desires to be substituted for the 
deceased or original petitioner, a written request may be submitted to 
the Service or American consular office where the petition is located 
to reinstate the petition and restore the original priority date.
    (E) Upon the beneficiary's reaching the age of 21 when the 
beneficiary has been accorded classification under section 201(b) of 
the Act. Provided that all requirements of section 204(f) of the Act 
continue to be met, however, the petition is to be considered valid for 
purposes of according the beneficiary preference classification under 
section 203(a)(1) of the Act if the beneficiary remains unmarried or 
under section 203(a)(3) if the beneficiary marries.
    (F) Upon the beneficiary's marriage when the beneficiary has been 
accorded classification under section 201(b) or section 203(a)(1) of 
the Act. Provided that all requirements of section 204(f) of the Act 
continue to be met, however, the petition is to be considered valid for 
purposes of according the beneficiary preference classification under 
section 203(a)(3) of the Act.
    (iii) Petitions under section 203(b), other than special immigrant 
juvenile petitions. (A) Upon invalidation pursuant to 20 CFR Part 656 
of the labor certification in support of the petition.
    (B) Upon the death of the petitioner or beneficiary.
    (C) Upon written notice of withdrawal filed by the petitioner, in 
employment-based preference cases, with any officer of the Service who 
is authorized to grant or deny petitions.
    (D) Upon termination of the employer's business in an employment-
based preference case under section 203(b)(1)(B), 203(b)(1)(C), 
203(b)(2), or 203(b)(3) of the Act.
    (iv) Special immigrant juvenile petitions. Unless the beneficiary 
met all of the eligibility requirements as of November 29, 1990, and 
the petition requirements as of November 29, 1990, and the petition for 
classification as a special immigrant juvenile was filed before June 1, 
1994, or unless the change in circumstances resulted from the 
beneficiary's adoption or placement in a guardianship situation:
    (A) Upon the beneficiary reaching the age of 21;
    (B) Upon the marriage of the beneficiary;
    (C) Upon the termination of the beneficiary's dependency upon the 
juvenile court;
    (D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or
    (E) Upon the determination in administrative or judicial 
proceedings that it is in the beneficiary's best interest to be 
returned to the country of nationality or last habitual residence of 
the beneficiary or of his or her parent or parents.
    (b) Notice. When it shall appear to the director that the approval 
of a petition has been automatically revoked, he or she shall cause a 
notice of such revocation to be sent promptly to the consular office 
having jurisdiction over the visa application and a copy of such notice 
to be mailed to the petitioner's last known address.
    20. Section 205.2 is amended by revising paragraph (b) and adding 
new paragraphs (c) and (d), to read as follows:


Sec. 205.2  Revocation on notice.

* * * * *
    (b) Notice of intent. Revocation of the approval of a petition of 
self-petition under paragraph (a) of this section will be made only on 
notice to the petitioner or self-petitioner. The petitioner or self-
petitioner must be given the opportunity to offer evidence in support 
of the petition or self-petition and in opposition to the grounds 
alleged for revocation of the approval.
    (c) Notification of revocation. If, upon reconsideration, the 
approval previously granted is revoked, the director shall provide the 
petitioner or the self-petitioner with a written notification of the 
decision that explains the specific reasons for the revocation. The 
director shall notify the consular officer having jurisdiction over the 
visa application, if applicable, of the revocation of an approval.
    (d) Appeals. The petitioner or self-petitioner may appeal the 
decision to

[[Page 13079]]
revoke the approval within 15 days after the service of notice of the 
revocation. The appeal must be filed as provided in part 3 of this 
chapter, unless the Associate Commissioner for Examinations exercises 
appellate jurisdiction over the revocation under part 103 of this 
chapter. Appeals filed with the Associate Commissioner for Examinations 
must meet the requirements of part 103 of this chapter.

PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS

    21. The authority citation for part 216 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8 
CFR part 2.

    22. Section 216.1 is amended by adding a new sentence at the end of 
the section, to read as follows:


Sec. 216.1  Definition of conditional permanent resident.

    * * * The conditions of section 216 of the Act shall not apply to 
lawful permanent resident status based on a self-petitioning 
relationship under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 
204(a)(1)(b)(ii), or 204(a)(1)(B)(iii) of the Act or based on 
eligibility as the derivative child of a self-petitioning spouse under 
section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act, regardless of 
the date on which the marriage to the abusive citizen or lawful 
permanent resident occurred.

    Dated: March 1, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-7219 Filed 3-25-96; 8:45 am]
BILLING CODE 4410-10-M