(a)   Background. Otherwise eligible sons and daughters of United States citizens and lawful permanent residents have found themselves precluded from filing a VAWA self-petition because they attained age 21 before the petition could be filed. The inability to file the self-petition before attaining age 21 may have been due to various reasons, including the nature of the abuse or the time period during which the abuse took place. Section 805(c) of VAWA 2005 amends section 204(a)(1)(D) of the Act by adding a new paragraph (v) which permits the late-filing of a VAWA self-petition in certain instances.

(b)   Reserved.

(c)   Adjudicative Issues.

(8)  Late Petition Permitted for Eligible Sons and Daughters as Children.

(A)  Background. Otherwise eligible sons and daughters of United States citizens and lawful permanent residents have found themselves precluded from filing a VAWA self-petition because they attained age 21 before the petition could be filed. The inability to file the self-petition before attaining age 21 may have been due to various reasons, including the nature of the abuse or the time period during which the abuse took place. Section 805(c) of VAWA 2005 amends section 204(a)(1)(D) of the Act by adding a new paragraph (v) which permits the late-filing of a VAWA self-petition in certain instances.

(B)  Eligibility Qualifications for Filing Late Petitions.

(i) Self-petitioner Qualified Before Attaining Age 21. The self-petitioner must have been qualified to file the self-petition on the day before the individual attained age 21. This means that all qualifying factors must have been in place on that date. For instance, if the"qualifying" abuse took place only after the individual attained age 21, the individual would not have been qualified to file the self-petition as of the day before he or she attained age 21.

(ii) Qualifying Abuse Must Be One Central Reason for Delay in Filing. Section 204(a)(1)(D)(v) of the Act requires the qualifying abuse to be "one central reason" for the self-petitioner's delay in filing. For these purposes, one central reason is one that is caused by or incident to the battery or extreme cruelty to which the self-petitioner was subjected. The battery or extreme cruelty is not required to be the sole reason for the delay in filing, but to be considered central, the nexus between the battery or extreme cruelty and the filing delay must be more than tangential.

An example of a qualifying reason would be that the abuse took place so near in time to the self-petitioner attaining age 21 that there was insufficient time to timely file. Another example would be that the abuse was so traumatic that the self-petitioner was mentally or physically incapable of filing in a timely manner. Although not limited to the foregoing examples, the abuse must be identifiable as one central reason for the delay. The adjudicating officer will evaluate each claim on a case-by-case basis taking into account the totality of circumstance leading to the delay in filing and the full history of battery or extreme cruelty in the case. The credibility and probative value of the evidence provided by the self-petitioner is a determination left to the discretion of the adjudicating officer.

(iii) Self-petition Must Be Filed Prior to Attaining Age 25. Pursuant to 204(a)(1)(D)(v) of the Act, the self-petitioner over age 21 must file Form I 360 with all accompanying documentation before the self-petitioner attains age 25.

(iv) Self-petitioner Must Be Unmarried. Paragraph (v) of 204(a)(1)(D) provides for the late-filing of a self-petition that would have otherwise been filed pursuant to 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act. Therefore, the adjudication of late-filed self-petitions filed under 204(a)(1)(D)(v) will be treated as though filed under either 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act.

Self-petitioners seeking classification under 204(a)(1)(D)(v) must be unmarried at the time of filing. Accordingly, self-petitioners who were unmarried at the time of filing, but acquire a husband or wife during the pendency of the self-petition, and remain married at the time of the adjudication of the self-petition are ineligible.

(C)  Filing Requirements. The late-filing self-petitioner must file a Form I 360, Petition for Amerasian, Widow(er), or Special Immigrant, along with relevant, credible evidence establishing eligibility and that the battering or extreme cruelty was one central reason for the delay in filing.

(D)  Consideration of Evidence. The adjudicating officer must consider any credible evidence that establishes the qualifying abuse was one central reason for the delay in filing. The self-petitioner should submit that evidence with the petition. If the evidence is absent from the submission, it may be requested. The self-petitioner may be requested to submit a statement explaining how submitted evidence establishes the required nexus.

(E)  Approval. If the self-petitioner will apply for adjustment of status under section 245 of the Act, the approved petition will be retained by USCIS. If the self-petitioner will apply for an immigrant visa abroad, USCIS will forward the self-petition to the Department of State's National Visa Center (8 CFR 204.2(e)(3)(i)).

(F)  Denial.

(i) Late-filing After Age 21. The adjudicating officer must deny a self-petition filed after the self-petitioner attains age 21 and before the self-petitioner attains age 25 that is not supported by credible evidence establishing the qualifying abuse was one central reason for the delay in filing. The denial should address the insufficiency in the evidence and all other eligibility deficiencies in the record.

(ii) Late-filing and Marital Status. The adjudicating officer must deny a self-petition filed by a married self-petitioner seeking classification under 204(a)(1)(D)(v). The adjudicating officer must also deny a self-petition filed by an unmarried self-petitioner seeking classification under 204(a)(1)(D)(v) who, after filing and during the pendency of the self-petition, acquired a husband or wife. However, an unmarried self-petitioner who sought classification under 204(a)(1)(D)(v), acquired a husband or wife after the filing of the self-petition, but whose marital relationship was legally terminated prior to a final decision by USCIS may remain eligible. Any credible evidence offered to demonstrate the legal termination of such a marriage will be considered.

(G)  Classification. A self-petitioner petitioning for eligibility under sub-paragraph (v) of section 204(a)(1)(D) of the Act shall be treated as if the self-petition had been filed on the day before the self-petitioner attained age 21. When a self-petition is approved, however, a self-petitioner’s continued eligibility and subsequent classification for visa issuance or adjustment of status shall be governed by section 201(f) of the Act or paragraph (i) of section 204(a)(1)(D) of the Act, whichever is appropriate.

(d)-(p)   Reserved.

(q)   Citizenship or Immigration Status of the Abuser. A self-petitioning spouse or child must demonstrate that his or her abusive spouse or parent is or was a U.S. Citizen (USC) or Lawful Permanent Resident (LPR).

(1)   Evidence. A self-petition filed by a battered spouse or child must be accompanied by evidence of citizenship of the U.S. citizen or evidence of the immigration status of the lawful permanent resident abuser. Self-petitioners are encouraged to submit primary evidence whenever possible, although adjudicators should consider any relevant credible evidence. 8 CFR 204.2(c)(2)(i) .

A self-petition filed by a battered spouse or child must be accompanied by evidence of citizenship of the U.S. citizen or evidence of the immigration status of the lawful permanent resident abuser. Self-petitioners are encouraged to submit primary evidence whenever possible, although adjudicators should consider any relevant credible evidence. 8 CFR 204.2(c)(2)(i) .

However, the determination of what evidence is credible, and the weight to be given to that evidence, is left to the discretion of the adjudicating officer. Section 204(a)(1)(J) of the INA. USClS regulations at 8 CFR 204.1(g)

Self-petitioners can submit evidence of a spousal relationship to a USC or LPR. The evidence allowed under 8 CFR 204.1(g)(1) will also be allowed for self-petitioners. Primary evidence of the abuser’s U.S. citizenship or lawful permanent residence includes:

·     A birth certificate issued by a civil authority that shows the abuser’s birth in the United States;

·     The abuser’s unexpired U.S. passport issued initially for a full ten-year period to a citizen of the United States;

·     The abuser’s expired U.S. passport issued initially for a full five-year period to a citizen of the United States who was under the age of 18 at the time of issuance;

·     A statement executed 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;

·     The abuser’s Certificate of Naturalization or Certificate of Citizenship;

·     Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the abuser;

·     The abuser’s Form 1-551 Alien Registration Receipt Card, or other proof given by USClS as evidence of lawful permanent residence.

Pursuant to the instructions section of the Form I-360 , Petition for Amerasian, Widow(er) or Special Immigrant, photocopies of the above documents may be accepted as primary evidence.

If primary evidence is unavailable, the self-petitioner must present secondary evidence. Any evidence submitted as secondary evidence should be evaluated for authenticity and credibility. USClS regulations at 8 CFR 204.1(g)(2) provide detailed information concerning secondary supporting documentation of a spousal relationship to a USC or LPR.

If a self-petitioner is unable to present primary evidence or secondary evidence of the abuser’s status, the officer will attempt to electronically verify the abuser’s citizenship or immigration status from information contained in DHS computerized records. Other DHS records may also be reviewed at the discretion of the adjudicating officer.

Nevertheless, it is ultimately the self-petitioner’s burden to establish the abuser’s U.S. citizenship or immigration status. If USClS is unable to identify a record as relating to an 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. See 8 CFR 204.1(g)(3) .

(2)     Loss of Immigration Status .

On October 28, 2000, the Battered Immigrant Women Protection Act of 2000 (BIWPA), Pub. L. 106-386 , was enacted. The BIWPA amended some of the self-petitioning provisions, including those relating to status of the abuser. Prior to the enactment of the BIWPA, an alien was ineligible to file a self-petition as a battered spouse or child of a USC or LPR if the USC or LPR spouse or parent lost his or her status prior to the date the self-petition was properly filed or approved.

The BIWPA, amended the Act to preserve self-petitioning eligibility for spouses and children of abusive USCs or LPRs if the spouse or child can demonstrate that the abusive USC or LPR lost his or her status during the two-year period immediately preceding the filing of the self-petition for a reason that was “related to” or “due to” an incident of domestic violence. This change applies to all self-petitioners, including those who file under sections 204(a)(1)(A)(v) or 204(a)(1)(B)(iv) as self-petitioners living abroad. This determination is based on the fact that sections 204(a)(1)(A)(v) and 204(a)(1)(B)(iv) of the Act state that the claimant must be “eligible to file a petition” under section 204(a)(1)(A)(iii) or (iv) of the Act or section 204(a)(1)(B)(ii) or (iii) of the Act, respectively.

(A)     Loss of Status Due to Death of the Abusive USC Spouse or Parent .

The spouse or child of a U.S. citizen who died within the two years immediately preceding the filing of the self-petition may benefit from the self-petitioning provisions. Section 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa) and 204(a)(1)(A)(iv) of the INA. However, this provision is only applicable to spouses or children of U.S. citizens.

(B)     Loss of Status Prior to Filing or Approval of the Form I-360 .

The spouse or child of a USC or LPR who lost USC or LPR status may benefit from the self-petitioning provisions provided the loss of status occurred within the two years immediately preceding the filing of the self-petition, and the loss of status was related to or due to an incident of domestic violence. In other words, if the self-petitioner can demonstrate that the abuser’s loss of status was related to or due to an incident of domestic violence, and the self-petitioner files his or her self-petition wit hin two years of the loss of status, that self-petition should not be denied on the grounds the abuser is not a USC or LPR. Sections 204(a)(1)(A)(iii)(II)(CC)(bbb) and (iv) ; 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa) and (iii) of the INA. Whether the abuser’s loss of status is “related to” or “due to” an incident of domestic violence is a matter of evidentiary proof. In order for an act or conviction to be considered sufficiently related to or due to an incident of domestic violence, the evidence must establish:

·     The circumstances surrounding the loss of status;

·     The requisite causal relationship between the loss of status and the incident of domestic violence; and

·     The loss of status occurred within the two-year period immediately preceding the filing of the self-petition.

When determining whether the alleged abusive spouse’s loss of status is related to or due to an incident of domestic violence, the adjudicating officer should consider the full history of the domestic violence in the case. The credibility and probative value of the evidence submitted by the self-petitioner is a determination left to the discretion of the adjudicating officer.

(C)     Loss of Status after Filing or Approval of the Form I-360 .

Loss of USC status by denaturalization, renunciation or other means, death of a USC abuser, divorce from a USC abuser, or changes to a USC abuser’s citizenship status after the filing of the self-petition shall not adversely affect the approval of the self-petition, nor shall it affect the ability of an approved self-petitioner to adjust status to that of an LPR. Similarly, divorce from an LPR or loss of LPR status by an LPR abuser after the filing of the self-petition shall not adversely affect the approva l of the self-petition, nor shall it affect the ability of an approved self-petitioner to adjust status to that of an LPR. Sections 204(a)(1)(A)(vi) and 204(a)(1)(B)(v)(I) of the INA.

(D)     Effective Date .

The provisions of the affecting this eligibility requirement apply to all self-petitions pending on or filed on or after October 28, 2000.