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, si nce 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 e nded 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 immigr ants 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 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 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

§ 103.1 [Amended]

2. Section 103.1 is amended by:

a. Revising the reference in paragraph (f)(3)(iii)(C) to "§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 "§223.1 of this chapter" to read "8 CFR part 223";

c. Revising the reference in paragraph (f)(3)(iii)(L) to "§223a.4 of this chapter" to read "8 CFR part 223";

d. Revising the reference in paragraph (f)(3)(iii)(X) to "§204.1(b) of this chapter" to read "8 CFR 204.3";

e. Revising the reference in paragraph (f)(3)(iii)(Y) to "§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 §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:

§ 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:

§ 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 discret ion 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:

§ 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:

§ 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 § 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 § 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, Widow, or Special Immigrant. These petitions are described in § 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 § 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 § 204.4.

* * * * *

8. Section 204.1 is amended by revising paragraph (e)(1), to read as follows:

§ 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:

§ 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:

§ 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:

§ 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 th e sole discretion of the Service.

* * * * *

12. Section 204.1 is amended by adding a new paragraph (g)(3), to read as follows:

§ 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: