INS Cable on Self-Petitioning for Battered Women

Subject: New immigrant classification - self-petitioning for abused and battered spouses and children of citizens of lawful permanent resident.

This is crime bill self-petitioning wire #1.

The Violent Crime and Control Act (The Crime Bill), P.L. 103-322, was signed by the President on September 13, 1994. Section 40701 of the crime bill amends INA Section 204 to allow certain spouses and children of citizens or lawful permanent residents to self-petition for immediate relative and preference classification.

Regulations implementing these new provisions have not yet been published; however, applications may be filed on and after January 1, 1995, based on the provisions of the statute. Service offices must accept these applications and hold them in abeyance until regulations become effective.

What to file:

Until the new regulations become effective, persons wishing to file under the new laws may be provided with a copy of this wire, and should be instructed to complete Form I-360 as follows:

1. Complete Part 1, following the instructions on the form.

2. Complete Part 2 by crossing out block "small C special immigrant juvenile" and writing next to that block: "Crime Bill - Spouse of Citizen;" "Crime Bill - Spouse of Permanent Resident;" "Crime Bill - Child of Citizen;" or "Crime Bill - Child of permanent Resident," as appropriate.

3. Complete Part 3, following the instructions on the form.

4. Complete Part 4, following the instructions on the form.

5. Complete Part 7, Section A, providing information about the U.S. Citizen or lawful permanent resident abuser. Write "none" in block asking for "date of death." Spouses and children of lawful permanent residents should write "lawful permanent resident" in the block asking about U.S. citizen- ship.

6. Complete Part 7, Section B, with information about the person named in Part 1 if he or she is the spouse of the citizen or permanent resident abuser. Complete Part 7, Section B, with information about the other parent if the person named in Part 1 is a child.

7. Complete Part 8, following the instructions on the form.

8. Complete Part 9, following the instructions on the form.

9. Complete Part 10, following the instructions on the form.

10. Attach:

1. Evidence of U.S. citizenship or lawful permanent resi- dent status of the abuser;

2. Marriage certificate of the abuser and the applicant or, if a child, the applicant's parent;

3. Evidence of legal termination (divorce decrees, annul- ment decrees, or death certificates) of any prior marriages of the abuser and of the applicant or, if a child, the applicant's parent;

4. Evidence of the applicant's residence in the United States with the abuser;

5. If the applicant is a spouse, evidence that the appli- cant entered into the marriage in good faith;

6. Evidence of the abuse;

7. An explanation of why the applicant's deportation would cause extreme hardship and, if appropriate, evidence relating to the claimed hardship;

8. Evidence of good moral character; and

9. The required fee for filing form I-360.

Evidence in general:

INS, which acts for the Attorney General in this matter, will consider all credible evidence submitted with the application before reaching a decision. INS will decide, however, what evidence is credible and what weight will be given to that evidence. Generally, more weight is given to evidence provided in court documents, medical reports, police reports, and other official documents. Applicants who have such records relating to the abuse are encouraged to submit them. INS will, however, consider other evidence of abuse, including affidavits submitted by friends, relatives, and the applicant. Applicants who are submitting affidavits are encouraged to provide affidavits from more than one person, if possible.

Evidence of good moral character:

Evidence of good moral character may include affidavits attesting to the alien's good moral character. Note that, as with any immigration proceeding, the provisions of INS Section 101(f) must be followed in determining whether the alien is a person of good moral character.

Where to file:

An applicant who is the spouse or child of a U.S. citizen may file the Form I-360 concurrently with an application for adjust- ment of status of Form I-485.

An applicant who is the spouse or child of a lawful permanent resident may file the Form I-360 concurrently with an application for adjustment of status on Form I-485 only if the family-spon- sored 2A second preference classification priority date for the applicant's country of chargeability is "current." In January 1995, this category is oversubscribed and is not current. Therefore, an applicant who is the spouse or child of a lawful permanent resident may not file this form concurrently with Form I-485 during January 1995, and must file Form I-360 separately as discussed below.

The applicant may also file supplement A to Form I-485, if neces- sary to establish eligibility for adjustment of status. Certain adjustment applicants may also be required to pay the additions sum fixed by INA Section 245(i) as added by P.L. 103-317. In determining whether the alien must pay the additional sum under INA Section 245(i), keep in mind that, if the alien's spouse or parent is a citizen, the alien will be adjusting as an immediate relative, and so will not be subject to INA Section 245(c).

If the applicant cannot or does not wish to file the Form I-360 concurrently with Form I-485, the Form I-360 and supporting evidence should be mailed to the appropriate service center following the instructions to Form I-360 entitled "Where to File."

Effect of termination of marriage:

Section 40701(c) of the crime bill amends INA Section 204 to provide that, once the service has approved a self-petition filed by an alien, the termination of the alien's marriage to a U.S. citizen or permanent resident alien, by itself does not warrant revocation of the approval of the petition under INA Section 205.

The text of the relevant portions of Section 40701 of the crime bill follows:

Section 40701. Alien petitioning rights for immediate relative or second preference status.

(a) In general. Section 204(a)(1) of the Immigration and Nation- ality Act (8 U.S.C. 1154(a)(1) is amended -
(1) In subparagraph (A) -
(A) By inserting "(i) after "(A);,
(B) By redesignating the second sentence as clause (ii), and
(C) By adding at the end the following new clauses:

"(iii) an alien who is the spouse of a citizen of the United States, who is a person of good moral character, who is eligible to be classified as an immediate relative under Section 201(b)(2- )(i), and who has resided in the United States with alien's spouse may file a petition with the Attorney General under this subparagraph for classification of the alien (and any child of the alien if such child has not been classified under clause (iv) under such section if the alien demonstrates to the Attorney General that -
(I) the alien is a person whose deportation, in the opinion of the Attorney General, would result in extreme hardship to the alien or a child of the alien.
"(v) an alien who is the child of a citizen of the United States, who is a person of good moral character, who is eligible to be classified as an immediate relative under Section 201(B)(2- )(A)(i), and who has resided in the United States with the citizen parent may file a petition with the Attorney General under this subparagraph for classification of the alien under such section if the alien demonstrates to the Attorney General that -
"(I) the alien is residing in the United States and during the period of residence with the citizen parent the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's citizen parent; and -
(II) the alien is a person whose deportation, in the opinion of the Attorney General, would result in extreme hardship to the alien.";
(2) In subparagraph (B) -
(A) By inserting "(i)" after "(B)"; and
(B) By adding at the end the following new clauses: (i) an alien who is the spouse of an alien lawfully admitted for permanent residence, who is a person of good moral character, who is eligible for classification under Section 203(a-)(2)(A), and who has resided in the United States with the alien's legal permanent resident spouse may file a petition with the Attorney General under this subparagraph for classification of the alien (and any child of the alien if such a child has not been classified under clause (iii) under such section if the alien demonstrates to the Attorney General that the conditions described in subclauses (I) and (II) of subparagraph (A)(iii) are met with respect to the alien.
(iii) An alien who is the child of an alien lawfully admitted for permanent residence, who is a person of good moral character, who is eligible for classification under Section 203(a)(A), and who has resided inn the United States with the alien's permanent resident parent may file a petition with the Attorney General under this subparagraph for classification of the alien under such section if the alien demonstrates to the Attorney General that -
"(I) The alien is residing in the United States and during the period of residence with the permanent resident parent the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's permanent resident parent; and
"(II) The alien is a person whose deportation, in the opinion of the Attorney General, would result in extreme hardship to the alien."; and
(3) By adding at the end the following new subparagraph:
"(H) in acting on petitions filed under clause (iii) or (iv) of subparagraph (A) or clause (ii) or (iii) of subparagraph (B), the Attorney General shall consider any credible evidence rele-vant 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 Attorney Genera.

(b) Conforming amendments. - (1) Section 204(a)(2) of the Immi-gration and National Act (8 U.S.C. 1154 (a)(2) is amended -
(A) In subparagraph (A) by striking "filed by an alien who," and inserting "for the classification of the spouse of an alien if the alien,"; and
(B) In subparagraph (B) by striking "by an alien whose prior marriage" and inserting "for the classification of the spouse of an alien if the prior marriage of the alien".
(2) Section 201(b)(2)(A)(i) of the Immigration and National-ity Act (8 U.S.C.1151(b)(2)(A)(i) is amended by striking "204(a-)(1)(A)" and inserting "204(a)(1)(A)(ii)".
(c) Survival rights to petition. Section 204 of the Immi-gration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following new subsection:
(h) The legal termination of a marriage may not be the sole basis for revocation under Section 205 of a petition filed under subsection (a)(1)(A)(iii) or a petition filed under Subsection (a)(1)(B)(iii)(I)."

(d) Effective date. - The amendments made by this section shall take effect January 1, 1995.

This wire has the concurrent of HQ Field Operations.

James A. Puleo
Executive Associate Commissioner,
Programs