[Federal Register Volume 62, Number 219 (Thursday, November 13, 1997)]
[Rules and Regulations]
[Pages 60769-60772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29770]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1845-97]
RIN 1115-AE77


Prima Facie Review of Form I-360 When Filed by Self-Petitioning 
Battered Spouse/Child

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interm rule with request for comments.

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SUMMARY: This interim rule amends the Immigration and Naturalization 
Service (Service) regulations to enable the Service to review Form I-
360, Petition for Amerasian, Widow(er) or Special Immigrant, filed by a 
battered spouse or child, to determine whether a prima facie case has 
been established. Recent legislation broadened the definition of aliens 
who qualify for public assistance to include battered aliens, and 
specifically those aliens whose self-petitions have been approved and 
those who file a self-petition which establishes a prima facie case for 
immigrant classification under the Violence Against Women Act.

DATES: Effective Date: This interim rule is effective November 13, 
1997.

Comment Date: Written comments must be submitted on or before January 
12, 1998.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 
20536, Attn: Public Comment Clerk. To ensure proper handling, please 
reference the INS number 1845-97 on your correspondence. Comments are 
available for public inspection at this location by calling (202) 514-
3291 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT:
Karen FitzGerald, Staff Officer, Residence and Status Branch, 
Immigration and Naturalization Service, 425 I Street, Room 3214, 
Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

    The Immigration and Nationality Act (the Act) allows a citizen or 
lawful permanent resident (LPR) of the United States to seek immigrant 
status for certain alien relatives from the Service. In order to 
receive this benefit, a visa petition must be filed on behalf of the 
alien relative and approved by the Service. The alien must then qualify 
for immigrant visa issuance abroad or adjustment of status in the 
United States.
    Historically, the initiation of the visa petition process was 
solely at the discretion of the U.S. citizen or LPR relative. For that 
reason, the citizen or LPR effectively controlled the ability of an 
alien spouse or child to regularize his or her immigration status. 
Congress, in the Violent Crime Control and Law Enforcement Act of 1994 
(the Crime Bill), Public Law 103-322, dated September 13, 1994, 
recognized the potential for misuse of this discretion within 
households where domestic violence occurs. Title IV of the Crime Bill, 
the Violence Against Women Act (VAWA), contains provisions which enable 
these battered spouses and children to self-petition for immigrant 
classification, thus limiting the ability of an abusive citizen or LPR 
to use the immigration laws to perpetuate further violence against a 
spouse or child residing in the United States.

Interim Rule

    On March 26, 1996, the Service published an interim rule at 61 FR 
13061, establishing the eligibility requirements for battered spouses 
and children using the self-petitioning process. The Service received 
numerous comments which are under consideration as the final rule is 
prepared for publication. This rule does not in any way alter the 
eligibility or evidentiary requirements set forth in that interim rule.

Impact of New Legislation

    Since the Service published its interim rule, Congress has enacted 
new legislation that affects the ability of most aliens to receive 
public assistance. In the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996 (PRWORA), Congress mandated that only 
``qualified aliens,'' as defined by statute, were eligible for public 
assistance. Section 501 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), amended the definition of 
``qualified alien'' to include battered aliens, including certain 
aliens who file or have

[[Page 60770]]

approved self-petitions. This ``qualified alien'' status is afforded 
not only to aliens with approved self-petitions, but also to those who 
file a self-petition which establishes a prima facie case for immigrant 
classification.

Purpose of Establishing a Prima Facie Case

    At the present time, the Service adjudicates the Form I-360, 
Petition for Amerasian, Widow(er) or Special Immigrant, and issues a 
notice of approval to those self-petitioning spouses and children who 
demonstrate eligibility. Upon approval of the self-petition, the 
applicant is a ``qualified alien'' for purposes of the PRWORA. Often, 
however, the initial submission does not comply with all of evidentiary 
burdens required for the Service to adjudicate the self-petition. In 
such cases, pursuant to Service regulations, self-petitioners are 
generally sent a request for evidence which sets forth the deficiencies 
of the application and allows the applicant 60 days in which to submit 
supplemental documentation. The applicant may be granted an additional 
60 days at the discretion of the Service pursuant to current 
regulations at 8 CFR 204.1(h).
    However, because battered aliens can be ``qualified aliens'' 
without approval of the petition, the Service must also evaluate the 
petition and the evidence submitted in support of the petition to 
determine if the alien has established a prima facie case. Although the 
statute affords benefits to those who establish prima facie 
eligibility, neither the statute nor the legislative history adequately 
details the requirements for establishing this eligibility. 
Conventional dictionary definitions are of little assistance in this 
regard. Without standards, determinations could be made inconsistently 
and with varying constancy to Congressional intent, which would be 
detrimental to the purpose of the statute and to the individual 
petitioner trying to meet it. This interim rule explains the standards 
to be utilized by the Service in determining whether the petitioner has 
established a prima facie case.

Requirements for Demonstrating a Prima Facie Case

    The prima facie determination will be made only after a self-
petition has been filed with the Service, and the decision to issue 
that Notice of Prima Facie Case (Notice) rests solely with the Service. 
In evaluating whether a self-petitioner has established a prima facie 
case, the Service must have evidence of each of the required elements 
of the self-petition as detailed in Service regulations at Sec. 204.2 
(c)(1) and (e)(1). Accordingly, self-petitioners should submit Form I-
360 and credible relevant evidence in support of the petition 
addressing each of the statutory elements as detailed in the 
instructions accompanying Form I-360: (1) existence of the qualifying 
relationship; (2) the citizenship or immigration status of the abuser; 
(3) the self-petitioner's eligibility for immigrant classification; (4) 
residence in the United States; (5) evidence that, during the 
qualifying relationship, the petitioner and abuser resided together in 
the United for some unspecified period of time; (6) battery or extreme 
cruelty; (7) good moral character; (8) extreme hardship; and (9) in the 
case of a self-petitioning spouse, good faith marriage. The elements 
and evidentiary requirements are set forth in 8 CFR Sec. 204.2 (c)(1) 
and (e)(1).
    If the Service determines that a petitioner has demonstrated prima 
facie eligibility, a Notice of Prima Facie Case will be issued. The 
Notice is neither a benefit nor immigration status in its own right, 
and an applicant cannot apply solely for a Notice of Prima Facie Case. 
The decision to issue such a notice rests solely with the Service. 
Applicants are encouraged to submit full documentation at the earliest 
possible time. However, bona fide candidates for self-petitioning 
should not postpone filing the petition because they are unable to 
immediately comply with all of the regulatory requirements.
    As an example, an applicant who has been unable to obtain police 
reports from each place of residence during the past 3 years could 
submit other supporting documentation which addresses the good moral 
character element of the adjudication. For the purpose of making a 
prima facie determination, an affidavit from the applicant stating he 
or she has never been arrested and is a person of good moral character 
may be considered acceptable for purposes of establishing a prima facie 
case. However, on its own, this affidavit is not sufficient to meet the 
evidentiary burden of Sec. 204.2 (c)(2)(v) and (e)(2)(v). Before final 
adjudication, the applicant must still submit police reports or, if 
they are unavailable, some other type of documentation as required by 
those provisions.
    The Service's decision to issue or not to issue a Notice will not 
be a factor in the adjudication of the underlying petition, nor will it 
constitute a binding determination of the credibility of the evidence 
submitted. Prima facie evidence will not always fully or completely 
satisfy the evidentiary burdens, and may be contradicted by evidence, 
documentation, or affidavits (or any other credible evidence) which 
come to the attention of the Service after a favorable prima facie 
determination has been made. Self-petitioners should be aware that such 
situations may result in the denial of the I-360 petition, even if a 
favorable prima facie determination was initially made. Conversely, the 
Service's decision not to issue the Notice of Prima Facie Case is not 
fatal to the underlying petition.
    The prima facie evaluation will consist of an initial review of the 
Form I-360 and the supporting documentation. Applicants who set forth a 
prima facie case will receive a Notice of Prima Facie Case to document 
their ``qualified alien'' status for public benefits. The Notice is 
valid until the Service has adjudicated the petition. At present, the 
Service intends to issue the Notice with a validity period of 150 days, 
which exceeds the time required for adjudication in the majority of 
these cases. In those few cases when the Service is unable to complete 
the adjudication within the 150-day period, the applicant will be able 
to request an extension pursuant to the instructions on the Notice. 
Because the Notice is intended solely for the purpose of enabling 
petitioners to apply for public benefits within the United States, the 
Service will only issue the Notice to petitioners residing in the 
United States.

Filing and Initial Processing

    Because the prima facie determination is not a separate benefit 
granted by the Service, the procedures that an applicant must follow 
are those set forth in the interim rule. The only procedural change 
concerns the filing of the Form I-360. As a result of the Direct Mail 
Notice published at 62 FR 16607 on April 7, 1997, all I-360 petitions 
filed by a self-petitioning spouse, child, or parent on behalf of a 
battered child, must be mailed directly to the Vermont Service Center, 
75 Lower Weldon Street, St. Albans, VT 05479. Self-petitioners will be 
provided with documentation indicating the Service has received the 
self-petition (Notice of Receipt). After reviewing the petition, the 
Service will mail applicants notification of the status of the 
petition. Regardless of whether a Notice of Prima Facie Case is issued, 
applicants who receive notice of an adverse preliminary finding will 
have the opportunity to respond with additional evidence or arguments. 
The self-petitioner will be advised by the Service as to the additional 
evidence or documentation needed to support the petition, and will be 
provided the opportunity to submit this additional evidence until the 
Service makes a final decision.

[[Page 60771]]

Good Cause Exception

    The Service's implementation of this rule as an interim rule, with 
provisions for post-promulgation public comments, is based upon the 
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d). It is in 
the public interest to provide prima facie determinations, which will 
enable qualifying spouses and children to apply for public assistance 
benefits. These resources and services may be critical to some 
applicants as they seek safety and independence from the abuser.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities because of the following factors: This rule addresses 
the grant of immigration benefits to certain individuals based on a 
family relationship to an abusive citizen or lawful permanent resident 
of the United States. This rule affects individuals, not small 
entities, and the economic impact is not significant.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to and approved 
by the Office of Management and Budget.

Executive Order 12612

    The regulations adopted herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of E.O. 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Paperwork Reduction Act

    This interim rule does not impose any new reporting or 
recordkeeping requirements. The information collection requirements 
contained in this rule have been previously approved by the Office of 
Management and Budget under the provisions of the Paperwork Reduction 
Act. The clearance number for this collection is contained in 8 CFR 
299.5, Display of control numbers.

List of Subjects in 8 CFR Part 204

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

PART 204-IMMIGRANT PETITIONS

    1. The authority citation for part 204 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 
1255; 1641; 8 CFR part 2.

    2. Section 204.2 is amended by adding new paragraphs (c)(6) and 
(e)(6), to read as follows:


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

* * * * *
    (c) * * *
    (6) Prima facie determination--(i) Upon receipt of a self-petition 
under paragraph (c)(1) of this section, the Service shall make a 
determination as to whether the petition and the supporting 
documentation establish a ``prima facie case'' for purposes of 8 U.S.C. 
1641, as amended by section 501 of Public Law 104-208.
    (ii) For purposes of paragraph (c)(6)(i) of this section, a prima 
facie case is established only if the petitioner submits a completed 
Form I-360 and other evidence supporting all of the elements required 
of a self-petitioner in paragraph (c)(1) of this section. A finding of 
prima facie eligibility does not relieve the petitioner of the burden 
of providing additional evidence in support of the petition and does 
not establish eligibility for the underlying petition.
    (iii) If the Service determines that a petitioner has made a 
``prima facie case,'' the Service shall issue a Notice of Prima Facie 
Case to the petitioner. Such Notice shall be valid until the Service 
either grants or denies the petition.
    (iv) For purposes of adjudicating the petition submitted under 
paragraph (c)(1) of this section, a prima facie determination--
    (A) Shall not be considered evidence in support of the petition;
    (B) Shall not be construed to make a determination of the 
credibility or probative value of any evidence submitted along with 
that petition; and,
    (C) Shall not relieve the self-petitioner of his or her burden of 
complying with all of the evidentiary requirements of paragraph (c)(2) 
of this section.
* * * * *
    (e) * * *
    (6) prima facie determination--(i) Upon receipt of a self-petition 
under paragraph (e)(1) of this section, the Service shall make a 
determination as to whether the petition and the supporting 
documentation establish a ``prima facie case'' for purposes of 8 U.S.C. 
1641, as amended by section 501 of Public Law 104-208.
    (ii) For purposes of paragraph (e)(6)(i) of this section, a prima 
facie case is established only if the petitioner submits a completed 
Form I-360 and other evidence supporting all of the elements required 
of a self-petitioner in paragraph (e)(1) of this section. A finding of 
prima facie eligibility does not relieve the petitioner of the burden 
of providing additional evidence in support of the petition and does 
not establish eligibility for the underlying petition.
    (iii) If the Service determines that a petitioner has made a 
``prima facie case'' the Service shall issue a Notice of Prima Facie 
Case to the petitioner. Such Notice shall be valid until the Service 
either grants or denies the petition.
    (iv) For purposes of adjudicating the petition submitted under 
paragraph (e)(1) of this section, a prima facie determination:
    (A) Shall not be considered evidence in support of the petition;
    (B) Shall not be construed to make a determination of the 
credibility or

[[Page 60772]]

probative value of any evidence submitted along with that petition; 
and,
    (C) Shall not relieve the self-petitioner of his or her burden of 
complying with all of the evidentiary requirements of paragraph (e)(2) 
of this section.
* * * * *
    Dated: July 21, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-29770 Filed 11-12-97; 8:45 am]
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