U.S. Citizenship and Immigration Services (USCIS) has released an internal memorandum
providing guidance on change in the self-petitioning eligibility requirements
regarding the effect of an abuser's loss of immigration status prior to the filing
of and following the approval of a self petition.
Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPR) file an immigrant
visa petition with the USCIS on behalf of a spouse or child, so that these family
members may emigrate to or remain in the United States. Form
I-130, Petition for Alien Relative is filed by the USC/LPR, the petitioner,
on behalf of the family member who is the beneficiary. Thus, it is the
petitioner who controls when or if the petition is filed.
However, some U.S. citizens and LPRs misuse their control of this process to abuse
their family members, or by threatening to report them to the USCIS. As a result,
most battered immigrants are afraid to report the abuse to the police or other
authorities. Under the Violence Against Women Act (VAWA) passed by Congress in
1994, the spouses and children of United States citizens or lawful permanent residents
(LPR) may self-petition to obtain lawful permanent residency. They must demonstrate
that the abusive spouse or parent is or was a USC or LPR.
Primary 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. In case primary evidence is available, it is
better to submit the same, however the memorandum advises the adjudicating officers
to consider any relevant credible evidence. Primary evidence of abuser's U.S.
citizenship or LPR status may include:
- 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 I-551 Alien Registration Receipt Card, or other proof
given by USCIS as evidence of lawful permanent residence.
Photocopies of the above documents may be accepted as primary evidence.
Secondary Evidence
If primary evidence is not available, the self-petitioners must present secondary
evidence, which may include:
- A baptismal certificate with the seal of the church, showing the date and
place of birth in the United States and the date of baptism;
- Affidavits sworn to by persons who were living at the time and who have
personal knowledge of the event to which they attest. The affidavits must
contain the affiant's full name and address, date and place of birth, relationship
to the parties, if any, and complete details concerning how the affiant acquired
knowledge of the event;
- Early school records (preferably from the first school) showing the date
of admission to the school, the child's date and place of birth, and the name(s)
and place(s) of birth of the parent(s);
- Census records showing the name, place of birth, and date of birth or age
of the petitioner; or
- If it is determined that it would cause unusual delay or hardship to obtain
documentary proof of birth in the United States, a United States citizen petitioner
who is a member of the Armed Forces of the United States and who is serving
outside the United States may submit a statement from the appropriate authority
of the Armed Forces. The statement should attest to the fact that the personnel
records of the Armed Forces show that the petitioner was born in the United
States on a certain date.
What if no evidence is available?
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. It is ultimately, however, the self-petitioner's burden to establish
the abuser's U.S. citizenship or immigration status. If USCIS 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.
Loss of Status of USC or LPR
Prior to the passing of The Battered Immigrant Women Protection Act of 2000 (BIWPA)
an alien was ineligible to file a self-petition as a battered spouse or child
of a USC or LPR if that 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 provisions 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.
Loss of status due to death: 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.
Loss of status prior to filing or approval of 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.
Loss of status after filing or approval of 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
approval of the self-petition, nor shall it affect the ability of an approved
self-petitioner to adjust status to that of an LPR.
Conclusion
The memorandum is meant to provide general guidance to the adjudicating officers
of the USCIS. In case you have any questions regarding your eligibility to self-petition
as a battered spouse or child of a U.S. Citizen or Lawful Permanent Resident,
please consult an
immigration attorney.
|
