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					                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                 evidence submitted as secondary evi-                      citizenship status, the self-petition will
                                                                 dence will be evaluated for authen-                       be adjudicated based on the informa-
                                                                 ticity and credibility. Secondary evi-                    tion submitted by the self-petitioner.
                                                                 dence may include, but is not limited                     [57 FR 41056, Sept. 9, 1992, as amended at 58
                                                                 to, one or more of the following docu-                    FR 48778, Sept. 20, 1993; 61 FR 13072, 13073,
                                                                 ments:                                                    Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998; 72 FR
                                                                   (i) A baptismal certificate with the                    19106, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007]
                                                                 seal of the church, showing the date
                                                                 and place of birth in the United States                   § 204.2 Petitions for relatives, widows
                                                                 and the date of baptism;                                        and widowers, and abused spouses
                                                                   (ii) Affidavits sworn to by persons                           and children.
                                                                 who were living at the time and who                          (a) Petition for a spouse—(1) Eligibility.
                                                                 have personal knowledge of the event                      A United States citizen or alien admit-
                                                                 to which they attest. The affidavits                      ted for lawful permanent residence
                                                                 must contain the affiant’s full name                      may file a petition on behalf of a
                                                                 and address, date and place of birth, re-                 spouse.
                                                                 lationship to the parties, if any, and                       (i) Marriage within five years of peti-
                                                                 complete details concerning how the                       tioner’s obtaining lawful permanent resi-
                                                                 affiant acquired knowledge of the                         dent status. (A) A visa petition filed on
                                                                 event;                                                    behalf of an alien by a lawful perma-
                                                                   (iii) Early school records (preferably                  nent resident spouse may not be ap-
                                                                 from the first school) showing the date                   proved if the marriage occurred within
                                                                 of admission to the school, the child’s                   five years of the petitioner being ac-
                                                                 date and place of birth, and the                          corded the status of lawful permanent
                                                                 name(s) and place(s) of birth of the par-                 resident based upon a prior marriage to
                                                                 ent(s);                                                   a United States citizen or alien law-
                                                                   (iv) Census records showing the                         fully admitted for permanent resi-
                                                                 name, place of birth, and date of birth                   dence, unless:
                                                                 or age of the petitioner; or                                 (1) The petitioner establishes by clear
                                                                   (v) If it is determined that it would                   and convincing evidence that the mar-
                                                                 cause unusual delay or hardship to ob-                    riage through which the petitioner
                                                                 tain documentary proof of birth in the                    gained permanent residence was not
                                                                 United States, a United States citizen                    entered into for the purposes of evad-
                                                                 petitioner who is a member of the                         ing the immigration laws; or
                                                                 Armed Forces of the United States and                        (2) The marriage through which the
                                                                 who is serving outside the United                         petitioner obtained permanent resi-
                                                                 States may submit a statement from                        dence was terminated through death.
                                                                 the appropriate authority of the Armed                       (B) Documentation. The petitioner
                                                                 Forces. The statement should attest to                    should submit documents which cover
                                                                 the fact that the personnel records of                    the period of the prior marriage. The
                                                                 the Armed Forces show that the peti-                      types of documents which may estab-
                                                                 tioner was born in the United States on                   lish that the prior marriage was not
                                                                 a certain date.                                           entered into for the purpose of evading
                                                                   (3) Evidence submitted with a self-peti-                the immigration laws include, but are
                                                                 tion. If a self-petitioner filing under                   not limited to:
                                                                 section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),                 (1) Documentation showing joint
                                                                 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the             ownership of property;
                                                                 Act is unable to present primary or                          (2) A lease showing joint tenancy of a
                                                                 secondary evidence of the abuser’s sta-                   common residence;
                                                                 tus, the Service will attempt to elec-                       (3) Documentation showing commin-
                                                                 tronically verify the abuser’s citizen-                   gling of financial resources;
                                                                 ship or immigration status from infor-                       (4) Birth certificate(s) of child(ren)
                                                                 mation contained in Service computer-                     born to the petitioner and prior spouse;
                                                                 ized records. Other Service records may                      (5) Affidavits sworn to or affirmed by
                                                                 also be reviewed at the discretion of                     third parties having personal knowl-
                                                                 the adjudicating officer. If the Service                  edge of the bona fides of the prior mar-
                                                                 is unable to identify a record as relat-                  ital relationship. (Each affidavit must
                                                                 ing to the abuser or the record does not                  contain the full name and address, date
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                                                                 establish the abuser’s immigration or                     and place of birth of the person making

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                                                                 Department of Homeland Security                                                                     § 204.2

                                                                 the affidavit; his or her relationship, if                or conspiracy must be contained in the
                                                                 any, to the petitioner, beneficiary or                    alien’s file.
                                                                 prior spouse; and complete information                       (iii) Marriage during proceedings—gen-
                                                                 and details explaining how the person                     eral prohibition against approval of visa
                                                                 acquired his or her knowledge of the                      petition. A visa petition filed on behalf
                                                                 prior marriage. The affiant may be re-                    of an alien by a United States citizen
                                                                 quired to testify before an immigration                   or a lawful permanent resident spouse
                                                                 officer about the information con-                        shall not be approved if the marriage
                                                                 tained in the affidavit. Affidavits                       creating the relationship occurred on
                                                                 should be supported, if possible, by one                  or after November 10, 1986, and while
                                                                 or more types of documentary evidence                     the alien was in exclusion, deportation,
                                                                 listed in this paragraph.); or                            or removal proceedings, or judicial pro-
                                                                   (6) Any other documentation which is                    ceedings relating thereto. Determina-
                                                                 relevant to establish that the prior                      tion of commencement and termi-
                                                                 marriage was not entered into in order                    nation of proceedings and exemptions
                                                                 to evade the immigration laws of the                      shall be in accordance with § 245.1(c)(9)
                                                                 United States.                                            of this chapter, except that the burden
                                                                                                                           in visa petition proceedings to estab-
                                                                   (C) The petitioner must establish by
                                                                                                                           lish eligibility for the exemption in
                                                                 clear and convincing evidence that the
                                                                                                                           § 245.1(c)(9)(iii)(F) of this chapter shall
                                                                 prior marriage was not entered into for
                                                                                                                           rest with the petitioner.
                                                                 the purpose of evading the immigration
                                                                                                                              (A) Request for exemption. No applica-
                                                                 laws. Failure to meet the ‘‘clear and
                                                                                                                           tion or fee is required to request an ex-
                                                                 convincing evidence’’ standard will re-
                                                                                                                           emption. The request must be made in
                                                                 sult in the denial of the petition. Such
                                                                                                                           writing and submitted with the Form
                                                                 a denial shall be without prejudice to
                                                                                                                           I–130. The request must state the rea-
                                                                 the filing of a new petition once the pe-                 son for seeking the exemption and
                                                                 titioner has acquired five years of law-                  must be supported by documentary evi-
                                                                 ful permanent residence. The director                     dence establishing eligibility for the
                                                                 may choose to initiate deportation pro-                   exemption.
                                                                 ceedings    based    upon    information                     (B) Evidence to establish eligibility for
                                                                 gained through the adjudication of the                    the bona fide marriage exemption. The
                                                                 petition; however, failure to initiate                    petitioner should submit documents
                                                                 such proceedings shall not establish                      which establish that the marriage was
                                                                 that the petitioner’s prior marriage                      entered into in good faith and not en-
                                                                 was not entered into for the purpose of                   tered into for the purpose of procuring
                                                                 evading the immigration laws. Unless                      the alien’s entry as an immigrant. The
                                                                 the petition is approved, the bene-                       types of documents the petitioner may
                                                                 ficiary shall not be accorded a filing                    submit include, but are not limited to:
                                                                 date within the meaning of section                           (1) Documentation showing joint
                                                                 203(c) of the Act based upon any spous-                   ownership of property;
                                                                 al second preference petition.                               (2) Lease showing joint tenancy of a
                                                                   (ii) Fraudulent marriage prohibition.                   common residence;
                                                                 Section 204(c) of the Act prohibits the                      (3) Documentation showing commin-
                                                                 approval of a visa petition filed on be-                  gling of financial resources;
                                                                 half of an alien who has attempted or                        (4) Birth certificate(s) of child(ren)
                                                                 conspired to enter into a marriage for                    born to the petitioner and beneficiary;
                                                                 the purpose of evading the immigration                       (5) Affidavits of third parties having
                                                                 laws. The director will deny a petition                   knowledge of the bona fides of the mar-
                                                                 for immigrant visa classification filed                   ital relationship (Such persons may be
                                                                 on behalf of any alien for whom there                     required to testify before an immigra-
                                                                 is substantial and probative evidence of                  tion officer as to the information con-
                                                                 such an attempt or conspiracy, regard-                    tained in the affidavit. Affidavits must
                                                                 less of whether that alien received a                     be sworn to or affirmed by people who
                                                                 benefit through the attempt or con-                       have personal knowledge of the marital
                                                                 spiracy. Although it is not necessary                     relationship. Each affidavit must con-
                                                                 that the alien have been convicted of,                    tain the full name and address, date
                                                                 or even prosecuted for, the attempt or                    and place of birth of the person making
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                                                                 conspiracy, the evidence of the attempt                   the affidavit and his or her relationship

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                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                 to the spouses, if any. The affidavit                     203(c) of the Act based upon any rel-
                                                                 must contain complete information                         ative petition filed during the prohib-
                                                                 and details explaining how the person                     ited period, unless an exemption con-
                                                                 acquired his or her knowledge of the                      tained in this part has been granted.
                                                                 marriage. Affidavits should be sup-                       Furthermore, a preference beneficiary
                                                                 ported, if possible, by one or more                       shall not be accorded a priority date
                                                                 types of documentary evidence listed                      prior to November 29, 1990, based upon
                                                                 in this paragraph); or                                    the approval of a request for consider-
                                                                   (6) Any other documentation which is                    ation for the bona fide marriage ex-
                                                                 relevant to establish that the marriage                   emption contained in this part.
                                                                 was not entered into in order to evade
                                                                                                                             (2) Evidence for petition for a spouse. In
                                                                 the immigration laws of the United
                                                                                                                           addition to evidence of United States
                                                                 States.
                                                                   (C) Decision. Any petition filed during                 citizenship or lawful permanent resi-
                                                                 the prohibited period shall be denied,                    dence, the petitioner must also provide
                                                                 unless the petitioner establishes eligi-                  evidence of the claimed relationship. A
                                                                 bility for an exemption from the gen-                     petition submitted on behalf of a
                                                                 eral prohibition. The petitioner shall                    spouse must be accompanied by a re-
                                                                 be notified in writing of the decision of                 cent ADIT-style photograph of the pe-
                                                                 the director.                                             titioner, a recent ADIT-style photo-
                                                                   (D) Denials. The denial of a petition                   graph of the beneficiary, a certificate
                                                                 because the marriage took place during                    of marriage issued by civil authorities,
                                                                 the prohibited period shall be without                    and proof of the legal termination of
                                                                 prejudice to the filing of a new petition                 all previous marriages of both the peti-
                                                                 after the beneficiary has resided out-                    tioner and the beneficiary. However,
                                                                 side the United States for the required                   non-ADIT-style photographs may be
                                                                 period of two years following the mar-                    accepted by the district director when
                                                                 riage. The denial shall also be without                   the petitioner or beneficiary reside(s)
                                                                 prejudice to the consideration of a new                   in a country where such photographs
                                                                 petition or a motion to reopen the visa                   are unavailable or cost prohibitive.
                                                                 petition proceedings if deportation or                      (3) Decision on and disposition of peti-
                                                                 exclusion proceedings are terminated                      tion. The approved petition will be for-
                                                                 after the denial other than by the bene-
                                                                                                                           warded to the Department of State’s
                                                                 ficiary’s departure from the United
                                                                                                                           Processing Center. If the beneficiary is
                                                                 States. Furthermore, the denial shall
                                                                                                                           in the United States and is eligible for
                                                                 be without prejudice to the consider-
                                                                 ation of a new petition or motion to re-                  adjustment of status under section 245
                                                                 open the visa petition proceedings, if                    of the Act, the approved petition will
                                                                 the petitioner establishes eligibility                    be retained by the Service. If the peti-
                                                                 for the bona fide marriage exemption                      tion is denied, the petitioner will be
                                                                 contained in this part: Provided, That                    notified of the reasons for the denial
                                                                 no motion to reopen visa petition pro-                    and of the right to appeal in accord-
                                                                 ceedings may be accepted if the ap-                       ance with the provisions of 8 CFR 3.3.
                                                                 proval of the motion would result in                        (4) Derivative beneficiaries. No alien
                                                                 the beneficiary being accorded a pri-                     may be classified as an immediate rel-
                                                                 ority date within the meaning of sec-                     ative as defined in section 201(b) of the
                                                                 tion 203(c) of the Act earlier than No-                   Act unless he or she is the direct bene-
                                                                 vember 29, 1990.                                          ficiary of an approved petition for that
                                                                   (E) Appeals. The decision of the Board                  classification. Therefore, a child of an
                                                                 of Immigration Appeals concerning the                     alien approved for classification as an
                                                                 denial of a relative visa petition be-                    immediate relative spouse is not eligi-
                                                                 cause the petitioner failed to establish                  ble for derivative classification and
                                                                 eligibility for the bona fide marriage                    must have a separate petition filed on
                                                                 exemption contained in this part will                     his or her behalf. A child accom-
                                                                 constitute the single level of appellate                  panying or following to join a principal
                                                                 review established by statute.
                                                                                                                           alien under section 203(a)(2) of the Act
                                                                   (F) Priority date. A preference bene-
                                                                                                                           may be included in the principal alien’s
                                                                 ficiary shall not be accorded a priority
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                                                                 date within the meaning of section                        second preference visa petition. The

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                                                                 Department of Homeland Security                                                                         § 204.2

                                                                 child will be accorded second pref-                           her document is unavailable, a letter
                                                                 erence classification and the same pri-                       from the appropriate registrar stating
                                                                 ority date as the principal alien. How-                       that the document is not available will
                                                                 ever, if the child reaches the age of                         be required before the Service will ac-
                                                                 twenty-one prior to the issuance of a                         cept secondary evidence. Secondary
                                                                 visa to the principal alien parent, a                         evidence will be evaluated for its au-
                                                                 separate petition will be required. In                        thenticity and credibility. Secondary
                                                                 such a case, the original priority date                       evidence may include:
                                                                 will be retained if the subsequent peti-                        (i) Such evidence of the marriage and
                                                                 tion is filed by the same petitioner.                         termination of prior marriages as reli-
                                                                 Such retention of priority date will be                       gious documents, tribal records, census
                                                                 accorded only to a son or daughter pre-                       records, or affidavits; and
                                                                 viously eligible as a derivative bene-                          (ii) Such evidence of the United
                                                                 ficiary under a second preference                             States citizen’s death as religious doc-
                                                                 spousal petition.                                             uments, funeral service records, obitu-
                                                                   (b) Petition by widow or widower of a                       aries, or affidavits. Affidavits sub-
                                                                 United States citizen—(1) Eligibility. A                      mitted as secondary evidence pursuant
                                                                 widow or widower of a United States                           to paragraphs (b)(2)(i) and (b)(2)(ii) of
                                                                 citizen may file a petition and be clas-                      this section must be sworn to or af-
                                                                 sified as an immediate relative under                         firmed by people who have personal
                                                                 section 201(b) of the Act if:                                 knowledge of the event to which they
                                                                   (i) He or she had been married for at                       attest. Each affidavit should contain
                                                                 least two years to a United States cit-                       the full name and address, date and
                                                                 izen.                                                         place of birth of the person making the
                                                                   (NOTE: The United States citizen is          not re-        affidavit and his or her relationship, if
                                                                 quired to have had the status of               United         any, to the widow or widower. Any
                                                                 States citizen for the entire two year         period,        such affidavit must contain complete
                                                                 but must have been a United States             citizen        information and details explaining how
                                                                 at the time of death.)                                        knowledge of the event was acquired.
                                                                   (ii) The petition is filed within two                         (3) Decision on and disposition of peti-
                                                                 years of the death of the citizen spouse                      tion. The approved petition will be for-
                                                                 or before November 29, 1992, if the cit-                      warded to the Department of State’s
                                                                 izen spouse died before November 29,                          Processing Center. If the widow or wid-
                                                                 1990;                                                         ower is in the United States and is eli-
                                                                   (iii) The alien petitioner and the cit-                     gible for adjustment of status under
                                                                 izen spouse were not legally separated                        section 245 of the Act, the approved pe-
                                                                 at the time of the citizen’s death; and                       tition will be retained by the Service.
                                                                   (iv) The alien spouse has not remar-                        If the petition is denied, the widow or
                                                                 ried.                                                         widower will be notified of the reasons
                                                                   (2) Evidence for petition of widow or                       for the denial and of the right to appeal
                                                                 widower. If a petition is submitted by                        in accordance with the provisions of 8
                                                                 the widow or widower of a deceased                            CFR 3.3.
                                                                 United States citizen, it must be ac-                           (4) Derivative beneficiaries. A child of
                                                                 companied by evidence of citizenship of                       an alien widow or widower classified as
                                                                 the United States citizen and primary                         an immediate relative is eligible for de-
                                                                 evidence, if available, of the relation-                      rivative classification as an immediate
                                                                 ship in the form of a marriage certifi-                       relative. Such a child may be included
                                                                 cate issued by civil authorities, proof                       in the principal alien’s immediate rel-
                                                                 of the termination of all prior mar-                          ative visa petition, and may accom-
                                                                 riages of both husband and wife, and                          pany or follow to join the principal
                                                                 the United States citizen’s death cer-                        alien to the United States. Derivative
                                                                 tificate issued by civil authorities. To                      benefits do not extend to an unmarried
                                                                 determine the availability of primary                         or married son or daughter of an alien
                                                                 documents, the Service will refer to                          widow or widower.
                                                                 the Department of State’s Foreign Af-                           (c) Self-petition by spouse of abusive
                                                                 fairs Manual (FAM). When the FAM                              citizen or lawful permanent resident—(1)
                                                                 shows that primary documents are gen-                         Eligibility—(i) Basic eligibility require-
                                                                 erally available in the country at issue                      ments. A spouse may file a self-petition
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                                                                 but the petitioner claims that his or                         under      section   204(a)(1)(A)(iii)  or

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                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                 204(a)(1)(B)(ii) of the Act for his or her                relative status. The self-petitioner
                                                                 classification as an immediate relative                   would not be precluded, however, from
                                                                 or as a preference immigrant if he or                     filing a new self-petition for immediate
                                                                 she:                                                      relative classification after the abus-
                                                                   (A) Is the spouse of a citizen or law-                  er’s naturalization, provided the self-
                                                                 ful permanent resident of the United                      petitioner continues to meet the self-
                                                                 States;                                                   petitioning requirements.
                                                                   (B) Is eligible for immigrant classi-                      (iv) Eligibility for immigrant classifica-
                                                                 fication under section 201(b)(2)(A)(i) or                 tion. A self-petitioner is required to
                                                                 203(a)(2)(A) of the Act based on that re-                 comply with the provisions of section
                                                                 lationship;                                               204(c) of the Act, section 204(g) of the
                                                                   (C) Is residing in the United States;                   Act, and section 204(a)(2) of the Act.
                                                                   (D) Has resided in the United States                       (v) Residence. A self-petition will not
                                                                 with the citizen or lawful permanent                      be approved if the self-petitioner is not
                                                                 resident spouse;                                          residing in the United States when the
                                                                   (E) Has been battered by, or has been                   self-petition is filed. The self-petitioner
                                                                 the subject of extreme cruelty per-                       is not required to be living with the
                                                                 petrated by, the citizen or lawful per-                   abuser when the petition is filed, but
                                                                 manent resident during the marriage;                      he or she must have resided with the
                                                                 or is that parent of a child who has                      abuser in the United States in the past.
                                                                 been battered by, or has been the sub-                       (vi) Battery or extreme cruelty. For the
                                                                 ject of extreme cruelty perpetrated by,                   purpose of this chapter, the phrase
                                                                 the citizen or lawful permanent resi-                     ‘‘was battered by or was the subject of
                                                                 dent during the marriage;                                 extreme cruelty’’ includes, but is not
                                                                   (F) Is a person of good moral char-                     limited to, being the victim of any act
                                                                 acter;                                                    or threatened act of violence, including
                                                                   (G) Is a person whose deportation                       any forceful detention, which results or
                                                                 would result in extreme hardship to                       threatens to result in physical or men-
                                                                 himself, herself, or his or her child; and                tal injury. Psychological or sexual
                                                                   (H) Entered into the marriage to the                    abuse or exploitation, including rape,
                                                                 citizen or lawful permanent resident in                   molestation, incest (if the victim is a
                                                                 good faith.                                               minor), or forced prostitution shall be
                                                                   (ii) Legal status of the marriage. The                  considered acts of violence. Other abu-
                                                                 self-petitioning spouse must be legally                   sive actions may also be acts of vio-
                                                                 married to the abuser when the peti-                      lence under certain circumstances, in-
                                                                 tion is properly filed with the Service.                  cluding acts that, in and of themselves,
                                                                 A spousal self-petition must be denied                    may not initially appear violent but
                                                                 if the marriage to the abuser legally                     that are a part of an overall pattern of
                                                                 ended through annulment, death, or di-                    violence. The qualifying abuse must
                                                                 vorce before that time. After the self-                   have been committed by the citizen or
                                                                 petition has been properly filed, the                     lawful permanent resident spouse,
                                                                 legal termination of the marriage will                    must have been perpetrated against the
                                                                 have no effect on the decision made on                    self-petitioner or the self-petitioner’s
                                                                 the self-petition. The self-petitioner’s                  child, and must have taken place dur-
                                                                 remarriage, however, will be a basis for                  ing the self-petitioner’s marriage to
                                                                 the denial of a pending self-petition.                    the abuser.
                                                                   (iii) Citizenship or immigration status                    (vii) Good moral character. A self-peti-
                                                                 of the abuser. The abusive spouse must                    tioner will be found to lack good moral
                                                                 be a citizen of the United States or a                    character if he or she is a person de-
                                                                 lawful permanent resident of the                          scribed in section 101(f) of the Act. Ex-
                                                                 United States when the petition is filed                  tenuating circumstances may be taken
                                                                 and when it is approved. Changes in the                   into account if the person has not been
                                                                 abuser’s citizenship or lawful perma-                     convicted of an offense or offenses but
                                                                 nent resident status after the approval                   admits to the commission of an act or
                                                                 will have no effect on the self-petition.                 acts that could show a lack of good
                                                                 A self-petition approved on the basis of                  moral character under section 101(f) of
                                                                 a relationship to an abusive lawful per-                  the Act. A person who was subjected to
                                                                 manent resident spouse will not be                        abuse in the form of forced prostitution
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                                                                 automatically upgraded to immediate                       or who can establish that he or she was

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                                                                 Department of Homeland Security                                                                     § 204.2

                                                                 forced to engage in other behavior that                   purpose of circumventing the immigra-
                                                                 could render the person excludable                        tion laws. A self-petition will not be
                                                                 under section 212(a) of the Act would                     denied, however, solely because the
                                                                 not be precluded from being found to be                   spouses are not living together and the
                                                                 a person of good moral character, pro-                    marriage is no longer viable.
                                                                 vided the person has not been con-                           (2) Evidence for a spousal self-petition—
                                                                 victed for the commission of the of-                      (i) General. Self-petitioners are encour-
                                                                 fense or offenses in a court of law. A                    aged to submit primary evidence when-
                                                                 self-petitioner will also be found to                     ever possible. The Service will con-
                                                                 lack good moral character, unless he or                   sider, however, any credible evidence
                                                                 she     establishes   extenuating     cir-                relevant to the petition. The deter-
                                                                 cumstances, if he or she willfully failed                 mination of what evidence is credible
                                                                 or refused to support dependents; or                      and the weight to be given that evi-
                                                                 committed unlawful acts that ad-                          dence shall be within the sole discre-
                                                                 versely reflect upon his or her moral                     tion of the Service.
                                                                 character, or was convicted or impris-                       (ii) Relationship. A self-petition filed
                                                                 oned for such acts, although the acts                     by a spouse must be accompanied by
                                                                 do not require an automatic finding of                    evidence of citizenship of the United
                                                                 lack of good moral character. A self-pe-                  States citizen or proof of the immigra-
                                                                 titioner’s claim of good moral char-                      tion status of the lawful permanent
                                                                 acter will be evaluated on a case-by-                     resident abuser. It must also be accom-
                                                                 case basis, taking into account the pro-                  panied by evidence of the relationship.
                                                                 visions of section 101(f) of the Act and
                                                                                                                           Primary evidence of a marital relation-
                                                                 the standards of the average citizen in
                                                                                                                           ship is a marriage certificate issued by
                                                                 the community. If the results of record
                                                                                                                           civil authorities, and proof of the ter-
                                                                 checks conducted prior to the issuance
                                                                                                                           mination of all prior marriages, if any,
                                                                 of an immigrant visa or approval of an
                                                                                                                           of both the self-petitioner and the
                                                                 application for adjustment of status
                                                                                                                           abuser. If the self-petition is based on a
                                                                 disclose that the self-petitioner is no
                                                                                                                           claim that the self-petitioner’s child
                                                                 longer a person of good moral char-
                                                                                                                           was battered or subjected to extreme
                                                                 acter or that he or she has not been a
                                                                                                                           cruelty committed by the citizen or
                                                                 person of good moral character in the
                                                                                                                           lawful permanent resident spouse, the
                                                                 past, a pending self-petition will be de-
                                                                 nied or the approval of a self-petition                   self-petition should also be accom-
                                                                 will be revoked.                                          panied by the child’s birth certificate
                                                                   (viii) Extreme hardship. The Service                    or other evidence showing the relation-
                                                                 will consider all credible evidence of                    ship between the self-petitioner and
                                                                 extreme hardship submitted with a                         the abused child.
                                                                 self-petition, including evidence of                         (iii) Residence. One or more docu-
                                                                 hardship arising from circumstances                       ments may be submitted showing that
                                                                 surrounding the abuse. The extreme                        the self-petitioner and the abuser have
                                                                 hardship claim will be evaluated on a                     resided together in the United States.
                                                                 case-by-case basis after a review of the                  One or more documents may also be
                                                                 evidence in the case. Self-petitioners                    submitted showing that the self-peti-
                                                                 are encouraged to cite and document                       tioner is residing in the United States
                                                                 all applicable factors, since there is no                 when the self-petition is filed. Employ-
                                                                 guarantee that a particular reason or                     ment records, utility receipts, school
                                                                 reasons will result in a finding that de-                 records, hospital or medical records,
                                                                 portation would cause extreme hard-                       birth certificates of children born in
                                                                 ship. Hardship to persons other than                      the United States, deeds, mortgages,
                                                                 the self-petitioner or the self-peti-                     rental records, insurance policies, affi-
                                                                 tioner’s child cannot be considered in                    davits or any other type of relevant
                                                                 determining whether a self-petitioning                    credible evidence of residency may be
                                                                 spouse’s deportation would cause ex-                      submitted.
                                                                 treme hardship.                                              (iv) Abuse. Evidence of abuse may in-
                                                                   (ix) Good faith marriage. A spousal                     clude, but is not limited to, reports and
                                                                 self-petition cannot be approved if the                   affidavits from police, judges and other
                                                                 self-petitioner entered into the mar-                     court officials, medical personnel,
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                                                                 riage to the abuser for the primary                       school officials, clergy, social workers,

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                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                 and other social service agency per-                      that one spouse has been listed as the
                                                                 sonnel. Persons who have obtained an                      other’s spouse on insurance policies,
                                                                 order of protection against the abuser                    property leases, income tax forms, or
                                                                 or have taken other legal steps to end                    bank accounts; and testimony or other
                                                                 the abuse are strongly encouraged to                      evidence regarding courtship, wedding
                                                                 submit copies of the relating legal doc-                  ceremony, shared residence and experi-
                                                                 uments. Evidence that the abuse vic-                      ences. Other types of readily available
                                                                 tim sought safe-haven in a battered                       evidence might include the birth cer-
                                                                 women’s shelter or similar refuge may                     tificates of children born to the abuser
                                                                 be relevant, as may a combination of                      and the spouse; police, medical, or
                                                                 documents such as a photograph of the                     court documents providing information
                                                                 visibly injured self-petitioner sup-                      about the relationship; and affidavits
                                                                 ported by affidavits. Other forms of                      of persons with personal knowledge of
                                                                 credible relevant evidence will also be                   the relationship. All credible relevant
                                                                 considered. Documentary proof of non-                     evidence will be considered.
                                                                 qualifying abuses may only be used to                       (3) Decision on and disposition of the
                                                                 establish a pattern of abuse and vio-                     petition—(i) Petition approved. If the
                                                                 lence and to support a claim that                         self-petitioning spouse will apply for
                                                                 qualifying abuse also occurred.                           adjustment of status under section 245
                                                                   (v) Good moral character. Primary evi-                  of the Act, the approved petition will
                                                                 dence of the self-petitioner’s good                       be retained by the Service. If the self-
                                                                 moral character is the self-petitioner’s                  petitioner will apply for an immigrant
                                                                 affidavit. The affidavit should be ac-                    visa abroad, the approved self-petition
                                                                 companied by a local police clearance                     will be forwarded to the Department of
                                                                 or a state-issued criminal background                     State’s National Visa Center.
                                                                 check from each locality or state in                        (ii) Petition denied. If the self-petition
                                                                 the United States in which the self-pe-                   is denied, the self-petitioner will be no-
                                                                 titioner has resided for six or more                      tified in writing of the reasons for the
                                                                 months during the 3-year period imme-                     denial and of the right to appeal the
                                                                 diately preceding the filing of the self-                 decision.
                                                                 petition. Self-petitioners who lived                        (4) Derivative beneficiaries. A child ac-
                                                                 outside the United States during this                     companying or following-to-join the
                                                                 time should submit a police clearance,                    self-petitioning spouse may be ac-
                                                                 criminal background check, or similar                     corded the same preference and pri-
                                                                 report issued by the appropriate au-                      ority date as the self-petitioner with-
                                                                 thority in each foreign country in                        out the necessity of a separate peti-
                                                                 which he or she resided for six or more                   tion, if the child has not been classified
                                                                 months during the 3-year period imme-                     as an immigrant based on his or her
                                                                 diately preceding the filing of the self-                 own self-petition. A derivative child
                                                                 petition. If police clearances, criminal                  who had been included in a parent’s
                                                                 background checks, or similar reports                     self-petition may later file a self-peti-
                                                                 are not available for some or all loca-                   tion, provided the child meets the self-
                                                                 tions, the self-petitioner may include                    petitioning requirements. A child who
                                                                 an explanation and submit other evi-                      has been classified as an immigrant
                                                                 dence with his or her affidavit. The                      based on a petition filed by the abuser
                                                                 Service will consider other credible                      or another relative may also be deriva-
                                                                 evidence of good moral character, such                    tively included in a parent’s self-peti-
                                                                 as affidavits from responsible persons                    tion. The derivative child must be un-
                                                                 who can knowledgeably attest to the                       married, less than 21 years old, and
                                                                 self-petitioner’s good moral character.                   otherwise qualify as the self-peti-
                                                                   (vi) Extreme hardship. Evidence of ex-                  tioner’s child under section 101(b)(1)(F)
                                                                 treme hardship may include affidavits,                    of the Act until he or she becomes a
                                                                 birth certificates of children, medical                   lawful permanent resident based on the
                                                                 reports, protection orders and other                      derivative classification.
                                                                 court documents, police reports, and                        (5) Name change. If the self-peti-
                                                                 other relevant credible evidence.                         tioner’s current name is different than
                                                                   (vii) Good faith marriage. Evidence of                  the name shown on the documents, evi-
                                                                 good faith at the time of marriage may                    dence of the name change (such as the
yshivers on PROD1PC62 with CFR




                                                                 include, but is not limited to, proof                     petitioner’s marriage certificate, legal

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                                                                 Department of Homeland Security                                                                     § 204.2

                                                                 document showing name change, or                          admitted for permanent residence may
                                                                 other similar evidence) must accom-                       file a petition on behalf of a child or an
                                                                 pany the self-petition.                                   unmarried son or daughter for pref-
                                                                    (6) Prima facie determination. (i) Upon                erence classification under section
                                                                 receipt of a self-petition under para-                    203(a)(2) of the Act.
                                                                 graph (c)(1) of this section, the Service                    (2) Evidence to support petition for
                                                                 shall make a determination as to                          child or son or daughter. In addition to
                                                                 whether the petition and the sup-                         evidence of United States citizenship
                                                                 porting documentation establish a                         or lawful permanent resident, the peti-
                                                                 ‘‘prima facie case’’ for purposes of 8                    tioner must also provide evidence of
                                                                 U.S.C. 1641, as amended by section 501                    the claimed relationship.
                                                                 of Public Law 104–208.                                       (i) Primary evidence for a legitimate
                                                                    (ii) For purposes of paragraph (c)(6)(i)               child or son or daughter. If a petition is
                                                                 of this section, a prima facie case is es-                submitted by the mother, the birth cer-
                                                                 tablished only if the petitioner submits                  tificate of the child showing the moth-
                                                                 a completed Form I–360 and other evi-                     er’s name must accompany the peti-
                                                                 dence supporting all of the elements                      tion. If the mother’s name on the birth
                                                                 required of a self-petitioner in para-                    certificate is different from her name
                                                                 graph (c)(1) of this section. A finding of                on the petition, evidence of the name
                                                                 prima facie eligibility does not relieve                  change must also be submitted. If a pe-
                                                                 the petitioner of the burden of pro-                      tition is submitted by the father, the
                                                                 viding additional evidence in support                     birth certificate of the child, a mar-
                                                                 of the petition and does not establish                    riage certificate of the parents, and
                                                                 eligibility for the underlying petition.                  proof of legal termination of the par-
                                                                    (iii) If the Service determines that a                 ents’ prior marriages, if any, issued by
                                                                 petitioner has made a ‘‘prima facie                       civil authorities must accompany the
                                                                 case,’’ the Service shall issue a Notice                  petition. If the father’s name has been
                                                                 of Prima Facie Case to the petitioner.                    legally changed, evidence of the name
                                                                 Such Notice shall be valid until the                      change must also accompany the peti-
                                                                 Service either grants or denies the pe-                   tion.
                                                                 tition.                                                      (ii) Primary evidence for a legitimated
                                                                    (iv) For purposes of adjudicating the                  child or son or daughter. A child can be
                                                                 petition submitted under paragraph                        legitimated through the marriage of
                                                                 (c)(1) of this section, a prima facie de-                 his or her natural parents, by the laws
                                                                 termination—                                              of the country or state of the child’s
                                                                    (A) Shall not be considered evidence                   residence or domicile, or by the laws of
                                                                 in support of the petition;                               the country or state of the father’s res-
                                                                    (B) Shall not be construed to make a                   idence or domicile. If the legitimation
                                                                 determination of the credibility or pro-                  is based on the natural parents’ mar-
                                                                 bative value of any evidence submitted                    riage, such marriage must have taken
                                                                 along with that petition; and,                            place while the child was under the age
                                                                    (C) Shall not relieve the self-peti-                   of eighteen. If the legitimation is based
                                                                 tioner of his or her burden of com-                       on the laws of the country or state of
                                                                 plying with all of the evidentiary re-                    the child’s residence or domicile, the
                                                                 quirements of paragraph (c)(2) of this                    law must have taken effect before the
                                                                 section.                                                  child’s eighteenth birthday. If the
                                                                    (d) Petition for a child or son or daugh-              legitimation is based on the laws of the
                                                                 ter—(1) Eligibility. A United States cit-                 country or state of the father’s resi-
                                                                 izen may file a petition on behalf of an                  dence or domicile, the father must
                                                                 unmarried child under twenty-one                          have resided—while the child was
                                                                 years of age for immediate relative                       under eighteen years of age—in the
                                                                 classification under section 201(b) of                    country or state under whose laws the
                                                                 the Act. A United States citizen may                      child has been legitimated. Primary
                                                                 file a petition on behalf of an unmar-                    evidence of the relationship should
                                                                 ried son or daughter over twenty-one                      consist of the beneficiary’s birth cer-
                                                                 years of age under section 203(a)(1) or                   tificate and the parents’ marriage cer-
                                                                 for a married son or daughter for pref-                   tificate     or   other    evidence     of
                                                                 erence classification under section                       legitimation issued by civil authori-
yshivers on PROD1PC62 with CFR




                                                                 203(a)(3) of the Act. An alien lawfully                   ties.

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                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                   (iii) Primary evidence for an illegitimate              vits of friends, neighbors, school offi-
                                                                 child or son or daughter. If a petition is                cials, or other associates knowledge-
                                                                 submitted by the mother, the child’s                      able about the relationship.
                                                                 birth certificate, issued by civil au-                      (iv) Primary evidence for a stepchild. If
                                                                 thorities and showing the mother’s                        a petition is submitted by a stepparent
                                                                 name, must accompany the petition. If                     on behalf of a stepchild or stepson or
                                                                 the mother’s name on the birth certifi-                   stepdaughter, the petition must be sup-
                                                                 cate is different from her name as re-                    ported by the stepchild’s or stepson’s
                                                                 flected in the petition, evidence of the                  or stepdaughter’s birth certificate,
                                                                 name change must also be submitted.                       issued by civil authorities and showing
                                                                 If the petition is submitted by the pur-                  the name of the beneficiary’s parent to
                                                                 ported father of a child or son or                        whom the petitioner is married, a mar-
                                                                 daughter born out of wedlock, the fa-
                                                                                                                           riage certificate issued by civil au-
                                                                 ther must show that he is the natural
                                                                                                                           thorities which shows that the peti-
                                                                 father and that a bona fide parent-child
                                                                                                                           tioner and the child’s natural parent
                                                                 relationship was established when the
                                                                 child or son or daughter was unmarried                    were married before the stepchild or
                                                                 and under twenty-one years of age.                        stepson or stepdaughter reached the
                                                                 Such a relationship will be deemed to                     age of eighteen; and evidence of the
                                                                 exist or to have existed where the fa-                    termination of any prior marriages of
                                                                 ther demonstrates or has demonstrated                     the petitioner and the natural parent
                                                                 an active concern for the child’s sup-                    of the stepchild or stepson or step-
                                                                 port, instruction, and general welfare.                   daughter.
                                                                 Primary evidence to establish that the                      (v) Secondary evidence. When it is es-
                                                                 petitioner is the child’s natural father                  tablished that primary evidence is not
                                                                 is the beneficiary’s birth certificate,                   available, secondary evidence may be
                                                                 issued by civil authorities and showing                   accepted. To determine the availability
                                                                 the father’s name. If the father’s name                   of primary documents, the Service will
                                                                 has been legally changed, evidence of                     refer to the Department of State’s For-
                                                                 the name change must accompany the                        eign Affairs Manual (FAM). When the
                                                                 petition. Evidence of a parent/child re-                  FAM shows that primary documents
                                                                 lationship should establish more than                     are generally available in the country
                                                                 merely a biological relationship. Emo-                    at issue but the petitioner claims that
                                                                 tional and/or financial ties or a genuine                 his or her document is unavailable, a
                                                                 concern and interest by the father for                    letter from the appropriate registrar
                                                                 the child’s support, instruction, and                     stating that the document is not avail-
                                                                 general welfare must be shown. There                      able will be required before the Service
                                                                 should be evidence that the father and                    will accept secondary evidence. Sec-
                                                                 child actually lived together or that                     ondary evidence will be evaluated for
                                                                 the father held the child out as being                    its authenticity and credibility. Sec-
                                                                 his own, that he provided for some or                     ondary evidence may take the form of
                                                                 all of the child’s needs, or that in gen-
                                                                                                                           historical evidence; such evidence must
                                                                 eral the father’s behavior evidenced a
                                                                                                                           have been issued contemporaneously
                                                                 genuine concern for the child. The
                                                                                                                           with the event which it documents any
                                                                 most persuasive evidence for estab-
                                                                 lishing a bona fide parent/child rela-                    may include, but is not limited to,
                                                                 tionship and financial responsibility by                  medical records, school records, and re-
                                                                 the father is documentary evidence                        ligious documents. Affidavits may also
                                                                 which was contemporaneous with the                        by accepted. When affidavits are sub-
                                                                 events in question. Such evidence may                     mitted, they must be sworn to by per-
                                                                 include, but is not limited to: money                     sons who were born at the time of and
                                                                 order receipts or cancelled checks                        who have personal knowledge of the
                                                                 showing the father’s financial support                    event to which they attest. Any affi-
                                                                 of the beneficiary; the father’s income                   davit must contain the affiant’s full
                                                                 tax returns; the father’s medical or in-                  name and address, date and place of
                                                                 surance records which include the ben-                    birth, relationship to the party, if any,
                                                                 eficiary as a dependent; school records                   and complete details concerning how
                                                                 for the beneficiary; correspondence be-                   the affiant acquired knowledge of the
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                                                                 tween the parties; or notarized affida-                   event.

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                                                                 Department of Homeland Security                                                                     § 204.2

                                                                   (vi) Blood tests. The director may re-                  shall be deemed to mark the com-
                                                                 quire that a specific Blood Group Anti-                   mencement of legal custody. An infor-
                                                                 gen Test be conducted of the bene-                        mal custodial or guardianship docu-
                                                                 ficiary and the beneficiary’s father and                  ment, such as a sworn affidavit signed
                                                                 mother. In general, blood tests will be                   before a notary public, is insufficient
                                                                 required only after other forms of evi-                   for this purpose.
                                                                 dence have proven inconclusive. If the                      (B) Evidence must also be submitted
                                                                 specific Blood Group Antigen Test is                      to show that the beneficiary resided
                                                                 also found not to be conclusive and the                   with the petitioner for at least two
                                                                 director determines that additional                       years. Generally, such documentation
                                                                 evidence is needed, a Human Leucocyte                     must establish that the petitioner and
                                                                 Antigen (HLA) test may be requested.                      the beneficiary resided together in a
                                                                 Tests will be conducted, at the expense
                                                                                                                           familial relationship. Evidence of pa-
                                                                 of the petitioner or beneficiary, by the
                                                                                                                           rental control may include, but is not
                                                                 United States Public Health Service
                                                                                                                           limited to, evidence that the adoptive
                                                                 physician who is authorized overseas or
                                                                                                                           parent owns or maintains the property
                                                                 by a qualified medical specialist des-
                                                                 ignated by the district director. The re-                 where the child resides and provides fi-
                                                                 sults of the test should be reported on                   nancial support and day-to-day super-
                                                                 Form G–620. Refusal to submit to a                        vision. The evidence must clearly indi-
                                                                 Specific Blood Group Antigen or HLA                       cate the physical living arrangements
                                                                 test when requested may constitute a                      of the adopted child, the adoptive par-
                                                                 basis for denial of the petition, unless a                ent(s), and the natural parent(s) for the
                                                                 legitimate religious objection has been                   period of time during which the adop-
                                                                 established. When a legitimate reli-                      tive parent claims to have met the res-
                                                                 gious objection is established, alter-                    idence requirement. When the adopted
                                                                 nate forms of evidence may be consid-                     child continued to reside in the same
                                                                 ered based upon documentation already                     household as a natural parent(s) during
                                                                 submitted.                                                the period in which the adoptive parent
                                                                   (vii) Primary evidence for an adopted                   petitioner seeks to establish his or her
                                                                 child or son or daughter. A petition may                  compliance with this requirement, the
                                                                 be submitted on behalf of an adopted                      petitioner has the burden of estab-
                                                                 child or son or daughter by a United                      lishing that he or she exercised pri-
                                                                 States citizen or lawful permanent                        mary parental control during that pe-
                                                                 resident if the adoption took place be-                   riod of residence.
                                                                 fore the beneficiary’s sixteenth birth-                     (C) Legal custody and residence oc-
                                                                 day, and if the child has been in the                     curring prior to or after the adoption
                                                                 legal custody of the adopting parent or                   will satisfy both requirements. Legal
                                                                 parents and has resided with the adopt-                   custody, like residence, is accounted
                                                                 ing parent or parents for at least two                    for in the aggregate. Therefore, a break
                                                                 years. A copy of the adoption decree,                     in legal custody or residence will not
                                                                 issued by the civil authorities, must
                                                                                                                           affect the time already fulfilled. To
                                                                 accompany the petition.
                                                                                                                           meet the definition of child contained
                                                                   (A) Legal custody means the assump-
                                                                                                                           in sections 101(b)(1)(E) and 101(b)(2) of
                                                                 tion of responsibility for a minor by an
                                                                                                                           the Act, the child must have been
                                                                 adult under the laws of the state and
                                                                 under the order or approval of a court                    under 16 years of age when the adop-
                                                                 of law or other appropriate government                    tion is finalized.
                                                                 entity. This provision requires that a                      (D) On or after the Convention effec-
                                                                 legal process involving the courts or                     tive date, as defined in 8 CFR part
                                                                 other recognized government entity                        204.301, a United States citizen who is
                                                                 take place. If the adopting parent was                    habitually resident in the United
                                                                 granted legal custody by the court or                     States, as determined under 8 CFR
                                                                 recognized governmental entity prior                      204.303, may not file a Form I–130 under
                                                                 to the adoption, that period may be                       this section on behalf of child who was
                                                                 counted toward fulfillment of the two-                    habitually resident in a Convention
                                                                 year legal custody requirement. How-                      country, as determined under 8 CFR
                                                                 ever, if custody was not granted prior                    204.303, unless the adoption was com-
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                                                                 to the adoption, the adoption decree                      pleted before the Convention effective

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                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                 date. In the case of any adoption occur-                  showing name change, or other similar
                                                                 ring on or after the Convention effec-                    evidence) must accompany the peti-
                                                                 tive date, a Form I–130 may be filed                      tion. If the beneficiary’s name has been
                                                                 and approved only if the United States                    legally changed, evidence of the name
                                                                 citizen petitioner was not habitually                     change must also accompany the peti-
                                                                 resident in the United States at the                      tion.
                                                                 time of the adoption.                                       (e) Self-petition by child of abusive cit-
                                                                   (E) For purposes of paragraph                           izen or lawful permanent resident—(1)
                                                                 (d)(2)(vii)(D) of this section, USCIS will                Eligibility. (i) A child may file a self-pe-
                                                                 deem a United States citizen, 8 CFR                       tition under section 204(a)(1)(A)(iv) or
                                                                 204.303 notwithstanding, to have been                     204(a)(1)(B)(iii) of the Act if he or she:
                                                                 habitually resident outside the United                      (A) Is the child of a citizen or lawful
                                                                 States, if the citizen satisfies the 2-                   permanent resident of the United
                                                                 year joint residence and custody re-                      States;
                                                                 quirements by residing with the child                       (B) Is eligible for immigrant classi-
                                                                 outside the United States.                                fication under section 201(b)(2)(A)(i) or
                                                                   (F) For purposes of paragraph                           203(a)(2)(A) of the Act based on that re-
                                                                 (d)(2)(vii)(D) of this section, USCIS will                lationship;
                                                                 not approve a Form I–130 under section                      (C) Is residing in the United States;
                                                                 101(b)(1)(E) of the Act on behalf of an                     (D) Has resided in the United States
                                                                 alien child who is present in the United                  with the citizen or lawful permanent
                                                                 States based on an adoption that is en-                   resident parent;
                                                                 tered on or after the Convention effec-                     (E) Has been battered by, or has been
                                                                 tive date, but whose habitual residence                   the subject of extreme cruelty per-
                                                                 immediately before the child’s arrival                    petrated by, the citizen or lawful per-
                                                                 in the United States was in a Conven-                     manent resident parent while residing
                                                                 tion country. However, the U.S. citizen                   with that parent;
                                                                 seeking the child’s adoption may file a                     (F) Is a person of good moral char-
                                                                 Form I–800A and Form I–800 under 8                        acter; and
                                                                 CFR part 204, subpart C.                                    (G) Is a person whose deportation
                                                                   (3) Decision on and disposition of peti-                would result in extreme hardship to
                                                                 tion. The approved petition will be for-                  himself or herself.
                                                                 warded to the Department of State’s                         (ii) Parent-child relationship to the
                                                                 Processing Center. If the beneficiary is                  abuser. The self-petitioning child must
                                                                 in the United States and is eligible for                  be unmarried, less than 21 years of age,
                                                                 adjustment of status under section 245                    and otherwise qualify as the abuser’s
                                                                 of the Act, the approved petition will                    child under the definition of child con-
                                                                 be retained by the Service. If the peti-                  tained in section 101(b)(1) of the Act
                                                                 tion is denied, the petitioner will be                    when the petition is filed and when it
                                                                 notified of the reasons for the denial                    is approved. Termination of the abus-
                                                                 and of the right to appeal in accord-                     er’s parental rights or a change in legal
                                                                 ance with the provisions of 8 CFR 3.3.                    custody does not alter the self-peti-
                                                                   (4) Derivative beneficiaries. A spouse or               tioning relationship provided the child
                                                                 child accompanying or following to                        meets the requirements of section
                                                                 join a principal alien as used in this                    101(b)(1) of the Act.
                                                                 section may be accorded the same pref-                      (iii) Citizenship or immigration status
                                                                 erence and priority date as the prin-                     of the abuser. The abusive parent must
                                                                 cipal alien without the necessity of a                    be a citizen of the United States or a
                                                                 separate petition. However, a child of                    lawful permanent resident of the
                                                                 an alien who is approved for classifica-                  United States when the petition is filed
                                                                 tion as an immediate relative is not el-                  and when it is approved. Changes in the
                                                                 igible for derivative classification and                  abuser’s citizenship or lawful perma-
                                                                 must have a separate petition approved                    nent resident status after the approval
                                                                 on his or her behalf.                                     will have no effect on the self-petition.
                                                                   (5) Name change. When the peti-                         A self-petition approved on the basis of
                                                                 tioner’s name does not appear on the                      a relationship to an abusive lawful per-
                                                                 child’s birth certificate, evidence of the                manent resident will not be automati-
                                                                 name change (such as the petitioner’s                     cally upgraded to immediate relative
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                                                                 marriage certificate, legal document                      status. The self-petitioning child would

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                                                                 Department of Homeland Security                                                                     § 204.2

                                                                 not be precluded, however, from filing                    under section 212(a) of the Act would
                                                                 a new self-petition for immediate rel-                    not be precluded from being found to be
                                                                 ative classification after the abuser’s                   a person of good moral character, pro-
                                                                 naturalization, provided the self-peti-                   vided the person has not been con-
                                                                 tioning child continues to meet the                       victed for the commission of the of-
                                                                 self-petitioning requirements.                            fense or offenses in a court of law. A
                                                                   (iv) Eligibility for immigrant classifica-              self-petitioner will also be found to
                                                                 tion. A self-petitioner is required to                    lack good moral character, unless he or
                                                                 comply with the provisions of section                     she      establishes   extenuating        cir-
                                                                 204(c) of the Act, section 204(g) of the                  cumstances, if he or she willfully failed
                                                                 Act, and section 204(a)(2) of the Act.                    or refused to support dependents; or
                                                                   (v) Residence. A self-petition will not                 committed unlawful acts that ad-
                                                                 be approved if the self-petitioner is not                 versely reflect upon his or her moral
                                                                 residing in the United States when the                    character, or was convicted or impris-
                                                                 self-petition is filed. The self-petitioner               oned for such acts, although the acts
                                                                 is not required to be living with the                     do not require an automatic finding of
                                                                 abuser when the petition is filed, but                    lack of good moral character. A self-pe-
                                                                 he or she must have resided with the                      titioner’s claim of good moral char-
                                                                 abuser in the United States in the past.                  acter will be evaluated on a case-by-
                                                                   (vi) Battery or extreme cruelty. For the                case basis, taking into account the pro-
                                                                 purpose of this chapter, the phrase                       visions of section 101(f) of the Act and
                                                                 ‘‘was battered by or was the subject of                   the standards of the average citizen in
                                                                 extreme cruelty’’ includes, but is not                    the community. If the results of record
                                                                 limited to, being the victim of any act                   checks conducted prior to the issuance
                                                                 or threatened act of violence, including                  of an immigrant visa or approval of an
                                                                 any forceful detention, which results or                  application for adjustment of status
                                                                 threatens to result in physical or men-                   disclose that the self-petitioner is no
                                                                 tal injury. Psychological or sexual                       longer a person of good moral char-
                                                                 abuse or exploitation, including rape,                    acter or that he or she has not been a
                                                                 molestation, incest (if the victim is a                   person of good moral character in the
                                                                 minor), or forced prostitution shall be                   past, a pending self-petition will be de-
                                                                 considered acts of violence. Other abu-                   nied or the approval of a self-petition
                                                                 sive actions may also be acts of vio-                     will be revoked.
                                                                 lence under certain circumstances, in-                       (viii) Extreme hardship. The Service
                                                                 cluding acts that, in and of themselves,                  will consider all credible evidence of
                                                                 may not initially appear violent but                      extreme hardship submitted with a
                                                                 are a part of an overall pattern of vio-                  self-petition, including evidence of
                                                                 lence. The qualifying abuse must have                     hardship arising from circumstances
                                                                 been committed by the citizen or law-                     surrounding the abuse. The extreme
                                                                 ful permanent resident parent, must                       hardship claim will be evaluated on a
                                                                 have been perpetrated against the self-                   case-by-case basis after a review of the
                                                                 petitioner, and must have taken place                     evidence in the case. Self-petitioners
                                                                 while the self-petitioner was residing                    are encouraged to cite and document
                                                                 with the abuser.                                          all applicable factors, since there is no
                                                                   (vii) Good moral character. A self-peti-                guarantee that a particular reason or
                                                                 tioner will be found to lack good moral                   reasons will result in a finding that de-
                                                                 character if he or she is a person de-                    portation would cause extreme hard-
                                                                 scribed in section 101(f) of the Act. Ex-                 ship. Hardship to persons other than
                                                                 tenuating circumstances may be taken                      the self-petitioner cannot be consid-
                                                                 into account if the person has not been                   ered in determining whether a self-pe-
                                                                 convicted of an offense or offenses but                   titioning child’s deportation would
                                                                 admits to the commission of an act or                     cause extreme hardship.
                                                                 acts that could show a lack of good                          (2) Evidence for a child’s self-petition—
                                                                 moral character under section 101(f) of                   (i) General. Self-petitioners are encour-
                                                                 the Act. A person who was subjected to                    aged to submit primary evidence when-
                                                                 abuse in the form of forced prostitution                  ever possible. The Service will con-
                                                                 or who can establish that he or she was                   sider, however, any credible evidence
                                                                 forced to engage in other behavior that                   relevant to the petition. The deter-
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                                                                 could render the person excludable                        mination of what evidence is credible

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                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                 and the weight to be given that evi-                      tioner is residing in the United States
                                                                 dence shall be within the sole discre-                    when the self-petition is filed. Employ-
                                                                 tion of the Service.                                      ment records, school records, hospital
                                                                   (ii) Relationship. A self-petition filed                or medical records, rental records, in-
                                                                 by a child must be accompanied by evi-                    surance policies, affidavits or any
                                                                 dence of citizenship of the United                        other type of relevant credible evi-
                                                                 States citizen or proof of the immigra-                   dence of residency may be submitted.
                                                                 tion status of the lawful permanent                         (iv) Abuse. Evidence of abuse may in-
                                                                 resident abuser. It must also be accom-                   clude, but is not limited to, reports and
                                                                 panied by evidence of the relationship.                   affidavits from police, judges and other
                                                                 Primary evidence of the relationship                      court officials, medical personnel,
                                                                 between:                                                  school officials, clergy, social workers,
                                                                   (A) The self-petitioning child and an                   and other social service agency per-
                                                                 abusive biological mother is the self-                    sonnel. Persons who have obtained an
                                                                 petitioner’s birth certificate issued by                  order of protection against the abuser
                                                                 civil authorities;                                        or taken other legal steps to end the
                                                                   (B) A self-petitioning child who was                    abuse are strongly encouraged to sub-
                                                                 born in wedlock and an abusive biologi-                   mit copies of the relating legal docu-
                                                                 cal father is the child’s birth certifi-                  ments. Evidence that the abuse victim
                                                                 cate issued by civil authorities, the                     sought safe-haven in a battered wom-
                                                                 marriage certificate of the child’s par-                  en’s shelter or similar refuge may be
                                                                 ents, and evidence of legal termination                   relevant, as may a combination of doc-
                                                                 of all prior marriages, if any;                           uments such as a photograph of the
                                                                   (C) A legitimated self-petitioning                      visibly injured self-petitioner sup-
                                                                 child and an abusive biological father                    ported by affidavits. Other types of
                                                                 is the child’s birth certificate issued by                credible relevant evidence will also be
                                                                 civil authorities, and evidence of the                    considered. Documentary proof of non-
                                                                 child’s legitimation;                                     qualifying abuse may only be used to
                                                                   (D) A self-petitioning child who was                    establish a pattern of abuse and vio-
                                                                 born out of wedlock and an abusive bio-                   lence and to support a claim that
                                                                 logical father is the child’s birth cer-                  qualifying abuse also occurred.
                                                                 tificate issued by civil authorities                        (v) Good moral character. Primary evi-
                                                                 showing the father’s name, and evi-                       dence of the self-petitioner’s good
                                                                 dence that a bona fide parent-child re-                   moral character is the self-petitioner’s
                                                                 lationship has been established be-                       affidavit. The affidavit should be ac-
                                                                 tween the child and the parent;                           companied by a local police clearance
                                                                   (E) A self-petitioning stepchild and                    or a state-issued criminal background
                                                                 an abusive stepparent is the child’s                      check from each locality or state in
                                                                 birth certificate issued by civil au-                     the United States in which the self-pe-
                                                                 thorities, the marriage certificate of                    titioner has resided for six or more
                                                                 the child’s parent and the stepparent                     months during the 3-year period imme-
                                                                 showing marriage before the stepchild                     diately preceding the filing of the self-
                                                                 reached 18 years of age, and evidence of                  petition. Self-petitioners who lived
                                                                 legal termination of all prior mar-                       outside the United States during this
                                                                 riages of either parent, if any; and                      time should submit a police clearance,
                                                                   (F) An adopted self-petitioning child                   criminal background check, or similar
                                                                 and an abusive adoptive parent is an                      report issued by the appropriate au-
                                                                 adoption decree showing that the adop-                    thority in the foreign country in which
                                                                 tion took place before the child                          he or she resided for six or more
                                                                 reached 16 years of age, and evidence                     months during the 3-year period imme-
                                                                 that the child has been residing with                     diately preceding the filing of the self-
                                                                 and in the legal custody of the abusive                   petition. If police clearances, criminal
                                                                 adoptive parent for at least 2 years.                     background checks, or similar reports
                                                                   (iii) Residence. One or more docu-                      are not available for some or all loca-
                                                                 ments may be submitted showing that                       tions, the self-petitioner may include
                                                                 the self-petitioner and the abuser have                   an explanation and submit other evi-
                                                                 resided together in the United States.                    dence with his or her affidavit. The
                                                                 One or more documents may also be                         Service will consider other credible
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                                                                 submitted showing that the self-peti-                     evidence of good moral character, such

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                                                                 Department of Homeland Security                                                                     § 204.2

                                                                 as affidavits from responsible persons                    prima facie eligibility does not relieve
                                                                 who can knowledgeably attest to the                       the petitioner of the burden of pro-
                                                                 self-petitioner’s good moral character.                   viding additional evidence in support
                                                                 A child who is less than 14 years of age                  of the petition and does not establish
                                                                 is presumed to be a person of good                        eligibility for the underlying petition.
                                                                 moral character and is not required to                       (iii) If the Service determines that a
                                                                 submit affidavits of good moral char-                     petitioner has made a ‘‘prima facie
                                                                 acter, police clearances, criminal back-                  case’’ the Service shall issue a Notice
                                                                 ground checks, or other evidence of                       of Prima Facie Case to the petitioner.
                                                                 good moral character.                                     Such Notice shall be valid until the
                                                                    (vi) Extreme hardship. Evidence of ex-                 Service either grants or denies the pe-
                                                                 treme hardship may include affidavits,                    tition.
                                                                 medical reports, protection orders and                       (iv) For purposes of adjudicating the
                                                                 other court documents, police reports,                    petition submitted under paragraph
                                                                 and other relevant credible evidence.                     (e)(1) of this section, a prima facie de-
                                                                    (3) Decision on and disposition of the                 termination:
                                                                 petition—(i) Petition approved. If the                       (A) Shall not be considered evidence
                                                                 self-petitioning child will apply for ad-                 in support of the petition;
                                                                 justment of status under section 245 of                      (B) Shall not be construed to make a
                                                                 the Act, the approved petition will be                    determination of the credibility or pro-
                                                                 retained by the Service. If the self-peti-                bative value of any evidence submitted
                                                                 tioner will apply for an immigrant visa                   along with that petition; and,
                                                                 abroad, the approved self-petition will                      (C) Shall not relieve the self-peti-
                                                                 be forwarded to the Department of                         tioner of his or her burden of com-
                                                                 State’s National Visa Center.                             plying with all of the evidentiary re-
                                                                    (ii) Petition denied. If the self-petition             quirements of paragraph (e)(2) of this
                                                                 is denied, the self-petitioner will be no-                section.
                                                                 tified in writing of the reasons for the                     (f) Petition for a parent—(1) Eligibility.
                                                                 denial and of the right to appeal the                     Only a United States citizen who is
                                                                 decision.                                                 twenty-one years of age or older may
                                                                    (4) Derivative beneficiaries. A child of a             file a petition on behalf of a parent for
                                                                 self-petitioning child is not eligible for                classification under section 201(b) of
                                                                 derivative classification and must have                   the Act.
                                                                 a petition filed on his or her behalf if                     (2) Evidence to support a petition for a
                                                                 seeking immigrant classification.                         parent. In addition to evidence of
                                                                    (5) Name change. If the self-peti-                     United States citizenship as listed in
                                                                 tioner’s current name is different than                   § 204.1(g) of this part, the petitioner
                                                                 the name shown on the documents, evi-                     must also provide evidence of the
                                                                 dence of the name change (such as the                     claimed relationship.
                                                                 petitioner’s marriage certificate, legal                     (i) Primary evidence if petitioner is a le-
                                                                 document showing the name change, or                      gitimate son or daughter. If a petition is
                                                                 other similar evidence) must accom-                       submitted on behalf of the mother, the
                                                                 pany the self-petition.                                   birth certificate of the petitioner show-
                                                                    (6) Prima facie determination. (i) Upon                ing the mother’s name must accom-
                                                                 receipt of a self-petition under para-                    pany the petition. If the mother’s name
                                                                 graph (e)(1) of this section, the Service                 on the birth certificate is different
                                                                 shall make a determination as to                          from her name as reflected in the peti-
                                                                 whether the petition and the sup-                         tion, evidence of the name change must
                                                                 porting documentation establish a                         also be submitted. If a petition is sub-
                                                                 ‘‘prima facie case’’ for purposes of 8                    mitted on behalf of the father, the
                                                                 U.S.C. 1641, as amended by section 501                    birth certificate of the petitioner, a
                                                                 of Public Law 104–208.                                    marriage certificate of the parents, and
                                                                    (ii) For purposes of paragraph (e)(6)(i)               proof of legal termination of the par-
                                                                 of this section, a prima facie case is es-                ents’ prior marriages, if any, issued by
                                                                 tablished only if the petitioner submits                  civil authorities must accompany the
                                                                 a completed Form I–360 and other evi-                     petition. If the father’s name on the
                                                                 dence supporting all of the elements                      birth certificate has been legally
                                                                 required of a self-petitioner in para-                    changed, evidence of the name change
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                                                                 graph (e)(1) of this section. A finding of                must also accompany the petition.

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                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                   (ii) Primary evidence if petitioner is a                tion. Evidence of a parent/child rela-
                                                                 legitimated son or daughter. A child can                  tionship should establish more than
                                                                 be legitimated through the marriage of                    merely a biological relationship. Emo-
                                                                 his or her natural parents, by the laws                   tional and/or financial ties or a genuine
                                                                 of the country or state of the child’s                    concern and interest by the father for
                                                                 residence or domicile, or by the laws of                  the child’s support, instruction, and
                                                                 the country or state of the father’s res-                 general welfare must be shown. There
                                                                 idence or domicile. If the legitimation                   should be evidence that the father and
                                                                 is based on the natural parent’s mar-                     child actually lived together or that
                                                                 riage, such marriage must have taken                      the father held the child out as being
                                                                 place while the child was under the age                   his own, that he provided for some or
                                                                 of eighteen. If the legitimation is based                 all of the child’s needs, or that in gen-
                                                                 on the laws of the country or state of                    eral the father’s behavior evidenced a
                                                                 the child’s residence or domicile, the                    genuine concern for the child. The
                                                                 law must have taken effect before the                     most persuasive evidence for estab-
                                                                 child’s eighteenth birthday. If the                       lishing a bona fide parent/child rela-
                                                                 legitimation is based on the laws of the                  tionship is documentary evidence
                                                                 country or state of the father’s resi-                    which was contemporaneous with the
                                                                 dence or domicile, the father must                        events in question. Such evidence may
                                                                 have resided—while the child was                          include, but is not limited to: money
                                                                 under eighteen years of age—in the                        order receipts or cancelled checks
                                                                 country or state under whose laws the                     showing the father’s financial support
                                                                 child has been legitimated. Primary                       of the beneficiary; the father’s income
                                                                 evidence of the relationship should                       tax returns; the father’s medical or in-
                                                                 consist of petitioner’s birth certificate                 surance records which include the peti-
                                                                 and the parents’ marriage certificate                     tioner as a dependent; school records
                                                                 or other evidence of legitimation                         for the petitioner; correspondence be-
                                                                 issued by civil authorities.                              tween the parties; or notarized affida-
                                                                   (iii) Primary evidence if the petitioner is             vits of friends, neighbors, school offi-
                                                                 an illegitimate son or daughter. If a peti-               cials, or other associates knowledge-
                                                                 tion is submitted on behalf of the                        able as to the relationship.
                                                                 mother, the petitioner’s birth certifi-                     (iv) Primary evidence if petitioner is an
                                                                 cate, issued by civil authorities and                     adopted son or daughter. A petition may
                                                                 showing the mother’s name, must ac-                       be submitted for an adoptive parent by
                                                                 company the petition. If the mother’s                     a United States citizen who is twenty-
                                                                 name on the birth certificate is dif-                     one years of age or older if the adop-
                                                                 ferent from her name as reflected in                      tion took place before the petitioner’s
                                                                 the petition, evidence of the name                        sixteenth birthday and if the two year
                                                                 change must also be submitted. If the                     legal custody and residence require-
                                                                 petition is submitted on behalf of the                    ments have been met. A copy of the
                                                                 purported father of the petitioner, the                   adoption decree, issued by the civil au-
                                                                 petitioner must show that the bene-                       thorities, must accompany the peti-
                                                                 ficiary is his or her natural father and                  tion.
                                                                 that a bona fide parent-child relation-                     (A) Legal custody means the assump-
                                                                 ship was established when the peti-                       tion of responsibility for a minor by an
                                                                 tioner was unmarried and under twen-                      adult under the laws of the state and
                                                                 ty-one years of age. Such a relation-                     under the order or approval of a court
                                                                 ship will be deemed to exist or to have                   of law or other appropriate government
                                                                 existed where the father demonstrates                     entity. This provision requires that a
                                                                 or has demonstrated an active concern                     legal process involving the courts or
                                                                 for the child’s support, instruction, and                 other recognized government entity
                                                                 general welfare. Primary evidence to                      take place. If the adopting parent was
                                                                 establish that the beneficiary is the pe-                 granted legal custody by the court or
                                                                 titioner’s natural father is the peti-                    recognized governmental entity prior
                                                                 tioner’s birth certificate, issued by                     to the adoption, that period may be
                                                                 civil authorities and showing the fa-                     counted toward fulfillment of the two-
                                                                 ther’s name. If the father’s name has                     year legal custody requirement. How-
                                                                 been legally changed, evidence of the                     ever, if custody was not granted prior
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                                                                 name change must accompany the peti-                      to the adoption, the adoption decree

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                                                                 Department of Homeland Security                                                                     § 204.2

                                                                 shall be deemed to mark the com-                          tive classification and must have a sep-
                                                                 mencement of legal custody. An infor-                     arate petition approved on his or her
                                                                 mal custodial or guardianship docu-                       behalf.
                                                                 ment, such as a sworn affidavit signed                      (g) Petition for a brother or sister—(1)
                                                                 before a notary public, is insufficient                   Eligibility. Only a United States citizen
                                                                 for this purpose.                                         who is twenty-one years of age or older
                                                                    (B) Evidence must also be submitted                    may file a petition of a brother or sis-
                                                                 to show that the beneficiary resided                      ter for classification under section
                                                                 with the petitioner for at least two                      203(a)(4) of the Act.
                                                                 years. Generally, such documentation                        (2) Evidence to support a petition for
                                                                 must establish that the petitioner and                    brother or sister. In addition to evidence
                                                                 the beneficiary resided together in a                     of United States citizenship, the peti-
                                                                 parental relationship. The evidence                       tioner must also provide evidence of
                                                                 must clearly indicate the physical liv-                   the claimed relationship.
                                                                 ing arrangements of the adopted child,                      (i) Primary evidence if the siblings
                                                                 the adoptive parent(s), and the natural                   share a common mother or are both legiti-
                                                                 parent(s) for the period of time during                   mate children of a common father. If a
                                                                 which the adoptive parent claims to                       sibling relationship is claimed through
                                                                 have met the residence requirement.                       a common mother, the petition must
                                                                    (C) Legal custody and residence oc-                    be supported by a birth certificate of
                                                                 curring prior to or after the adoption                    the petitioner and a birth certificate of
                                                                 will satisfy both requirements. Legal                     the beneficiary showing a common
                                                                 custody, like residence, is accounted                     mother. If the mother’s name on one
                                                                 for in the aggregate. Therefore, a break                  birth certificate is different from her
                                                                 in legal custody or residence will not                    name as reflected on the other birth
                                                                 affect the time already fulfilled. To                     certificate or in the petition, evidence
                                                                 meet the definition of child contained                    of the name change must also be sub-
                                                                 in sections 101(b)(1)(E) and 101(b)(2) of                 mitted. If a sibling relationship is
                                                                 the Act, the child must have been                         claimed through a common father, the
                                                                 under 16 years of age when the adop-                      birth certificates of the beneficiary and
                                                                 tion is finalized.                                        petitioner, a marriage certificate of
                                                                    (v) Name change. When the petition is                  the parents’ and proof of legal termi-
                                                                 filed by a child for the child’s parent,                  nation of the parents, prior mar-
                                                                 and the parent’s name is not on the                       riage(s), if any, issued by civil authori-
                                                                 child’s birth certificate, evidence of the                ties must accompany the petition. If
                                                                 name change (such as the parent’s mar-                    the father’s name has been legally
                                                                 riage certificate, a legal document                       changed, evidence of the name change
                                                                 showing the parent’s name change, or                      must also accompany the petition.
                                                                 other similar evidence) must accom-                         (ii) Primary evidence if either or both
                                                                 pany the petition. If the petitioner’s                    siblings are legitimated. A child can be
                                                                 name has been legally changed, evi-                       legitimated through the marriage of
                                                                 dence of the name change must also ac-                    his or her natural parents, by the laws
                                                                 company the petition.                                     of the country or state of the child’s
                                                                    (3) Decision on and disposition of peti-               residence or domicile, or by the laws of
                                                                 tion. The approved petition will be for-                  the country or state of the father’s res-
                                                                 warded to the Department of State’s                       idence or domicile. If the legitimation
                                                                 Processing Center. If the beneficiary is                  is based on the natural parents’ mar-
                                                                 in the United States and is eligible for                  riage, such marriage must have taken
                                                                 adjustment of status under section 245                    place while the child was under the age
                                                                 of the Act, the approved petition will                    of eighteen. If the legitimation is based
                                                                 be retained by the Service. If the peti-                  on the laws of the country or state of
                                                                 tion is denied, the petitioner will be                    the child’s residence or domicile, the
                                                                 notified of the reasons for the denial                    law must have taken effect before the
                                                                 and of the right to appeal in accord-                     child’s eighteenth birthday. If based on
                                                                 ance with the provisions of 8 CFR 3.3.                    the laws of the country or state of the
                                                                    (4) Derivative beneficiaries. A child or               father’s residence or domicile, the fa-
                                                                 a spouse of a principal alien who is ap-                  ther must have resided—while the child
                                                                 proved for classification as an imme-                     was under eighteen years of age—in the
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                                                                 diate relative is not eligible for deriva-                country or state under whose laws the

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                                                                 § 204.2                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                 child has been legitimated. Primary                       vits of friends, neighbors, school offi-
                                                                 evidence of the relationship should                       cials, or other associates knowledge-
                                                                 consist of the petitioner’s birth certifi-                able about the relationship.
                                                                 cate, the beneficiary’s birth certificate,                  (iv) Primary evidence for stepsiblings. If
                                                                 and the parents’ marriage certificate                     the petition is submitted on behalf of a
                                                                 or other evidence of legitimation                         brother or sister having a common fa-
                                                                 issued by civil authorities.                              ther, the relationship of both the peti-
                                                                    (iii) Primary evidence if either sibling is            tioner and the beneficiary to the father
                                                                 illegitimate. If one or both of the sib-                  must be established as required in
                                                                 lings is (are) the illegitimate child(ren)                paragraphs (g)(2)(ii) and (g)(2)(iii) of
                                                                 of a common father, the petitioner                        this section. If the petitioner and bene-
                                                                 must show that they are the natural                       ficiary are stepsiblings through the
                                                                 children of the father and that a bona                    marriages of their common father to
                                                                 fide parent-child relationship was es-                    different mothers, the marriage certifi-
                                                                 tablished      when    the      illegitimate              cates of the parents and evidence of the
                                                                 child(ren) was (were) unmarried and                       termination of any prior marriages of
                                                                 under twenty-one years of age. Such a                     the parents must be submitted.
                                                                 relationship will be deemed to exist or                     (3) Decision on and disposition of peti-
                                                                 to have existed where the father dem-                     tion. The approved petition will be for-
                                                                 onstrates or has demonstrated an ac-                      warded to the Department of State’s
                                                                 tive concern for the child’s support, in-                 Processing Center. If the beneficiary is
                                                                 struction, and general welfare. Pri-                      in the United States and is eligible for
                                                                 mary evidence is the petitioner’s and                     adjustment of status under section 245
                                                                 beneficiary’s birth certificates, issued                  of the Act, the approved petition will
                                                                 by civil authorities and showing the fa-                  be retained by the Service. If the peti-
                                                                 ther’s name, and evidence that the sib-                   tion is denied, the petitioner will be
                                                                 lings have or had a bona fide parent/                     notified of the reasons for the denial
                                                                 child relationship with the natural fa-
                                                                                                                           and of the right to appeal in accord-
                                                                 ther. If the father’s name has been le-
                                                                                                                           ance with the provisions of 8 CFR 3.3.
                                                                 gally changed, evidence of the name
                                                                                                                             (4) Derivative beneficiaries. A spouse or
                                                                 change must accompany the petition.
                                                                 Evidence of a parent/child relationship                   a child accompanying or following to
                                                                 should establish more than merely a                       join a principal alien beneficiary under
                                                                 biological relationship. Emotional and/                   this section may be accorded the same
                                                                 or financial ties or a genuine concern                    preference and priority date as the
                                                                 and interest by the father for the                        principal alien without the necessity of
                                                                 child’s support, instruction, and gen-                    a separate petition.
                                                                 eral welfare must be shown. There                           (5) Name change. If the name of the
                                                                 should be evidence that the father and                    petitioner, the beneficiary, or both has
                                                                 child actually lived together or that                     been legally changed, evidence showing
                                                                 the father held the child out as being                    the name change (such as a marriage
                                                                 his own, that he provided for some or                     certificate, a legal document showing
                                                                 all of the child’s needs, or that in gen-                 the name change, or other similar evi-
                                                                 eral the father’s behavior evidenced a                    dence) must accompany the petition.
                                                                 genuine concern for the child. The                          (h) Validity of approved petitions—(1)
                                                                 most persuasive evidence for estab-                       General. Unless terminated pursuant to
                                                                 lishing a bona fide parent/child rela-                    section 203(g) of the Act or revoked
                                                                 tionship is documentary evidence                          pursuant to part 205 of this chapter,
                                                                 which was contemporaneous with the                        the approval of a petition to classify an
                                                                 events in question. Such evidence may                     alien as a preference immigrant under
                                                                 include, but is not limited to: money                     paragraphs (a)(1), (a)(2), (a)(3), or (a)(4)
                                                                 order receipts or canceled checks show-                   of section 203 of the Act, or as an im-
                                                                 ing the father’s financial support of the                 mediate relative under section 201(b) of
                                                                 beneficiary; the father’s income tax re-                  the Act, shall remain valid for the du-
                                                                 turns; the father’s medical or insur-                     ration of the relationship to the peti-
                                                                 ance records which include the bene-                      tioner and of the petitioner’s status as
                                                                 ficiary as a dependent; school records                    established in the petition.
                                                                 for the beneficiary; correspondence be-                     (2) Subsequent petition by same peti-
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                                                                 tween the parties; or notarized affida-                   tioner for same beneficiary. When a visa

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                                                                 Department of Homeland Security                                                                     § 204.2

                                                                 petition has been approved, and subse-                    approved for preference status under
                                                                 quently a new petition by the same pe-                    section 203(a)(3) of the Act as of the
                                                                 titioner is approved for the same pref-                   date the beneficiary marries. The bene-
                                                                 erence classification on behalf of the                    ficiary’s priority date is the same as
                                                                 same beneficiary, the latter approval                     the date the petition for classification
                                                                 shall be regarded as a reaffirmation or                   under section 203(a)(1) of the Act was
                                                                 reinstatement of the validity of the                      properly filed.
                                                                 original petition, except when the                           (ii) A currently valid petition pre-
                                                                 original petition has been terminated                     viously approved to classify a child of a
                                                                 pursuant to section 203(g) of the Act or                  United States citizen as an immediate
                                                                 revoked pursuant to part 205 of this                      relative under section 201(b) of the Act
                                                                 chapter, or when an immigrant visa                        shall be regarded as having been ap-
                                                                 has been issued to the beneficiary as a                   proved for preference status under sec-
                                                                 result of the petition approval. A self-                  tion 203(a)(3) of the Act as of the date
                                                                 petition       filed    under        section              the beneficiary marries. The bene-
                                                                 204(a)(1)(A)(iii),          204(a)(1)(A)(iv),             ficiary’s priority date is the same as
                                                                 204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the                the date the petition for 201(b) classi-
                                                                 Act based on the relationship to an                       fication was properly filed.
                                                                 abusive citizen or lawful permanent                          (iii) A currently valid petition
                                                                 resident of the United States will not                    classifying the married son or married
                                                                 be regarded as a reaffirmation or rein-                   daughter of a United States citizen for
                                                                 statement of a petition previously filed                  preference     status     under    section
                                                                 by the abuser. A self-petitioner who                      203(a)(3) of the Act shall, upon legal
                                                                 has been the beneficiary of a visa peti-                  termination of the beneficiary’s mar-
                                                                 tion filed by the abuser to accord the                    riage, be regarded as having been ap-
                                                                 self-petitioner immigrant classifica-                     proved under section 203(a)(1) of the
                                                                 tion as his or her spouse or child, how-                  Act if the beneficiary is over twenty-
                                                                 ever, will be allowed to transfer the                     one years of age. The beneficiary’s pri-
                                                                 visa petition’s priority date to the self-                ority date is the same as the date the
                                                                 petition. The visa petition’s priority                    petition for classification under sec-
                                                                 date may be assigned to the self-peti-                    tion 203(a)(3) of the Act was properly
                                                                 tion without regard to the current va-                    filed. If the beneficiary is under twen-
                                                                 lidity of the visa petition. The burden                   ty-one years of age, the petition shall
                                                                 of proof to establish the existence of                    be regarded as having been approved
                                                                 and the filing date of the visa petition                  for classification as an immediate rel-
                                                                 lies with the self-petitioner, although                   ative under section 201(b) of the Act as
                                                                 the Service will attempt to verify a                      of the date the petition for classifica-
                                                                 claimed filing through a search of the                    tion under section 203(a)(3) of the Act
                                                                 Service’s computerized records or other                   was properly filed.
                                                                 records deemed appropriate by the ad-                        (iv) A currently valid visa petition
                                                                 judicating officer. A new self-petition                   previously approved to classify the
                                                                 filed under section 204(a)(1)(A)(iii),                    beneficiary as an immediate relative as
                                                                 204(a)(1)(A)(iv),    204(a)(1)(B)(ii),    or              the spouse of a United States citizen
                                                                 204(a)(1)(B)(iii) of the Act will not be                  must be regarded, upon the death of
                                                                 regarded as a reaffirmation or rein-                      the petitioner, as having been approved
                                                                 statement of the original self-petition                   as     a   Form    I–360,   Petition   for
                                                                 unless the prior and the subsequent                       Amerasian, Widow(er) or Special Immi-
                                                                 self-petitions are based on the relation-                 grant for classification under para-
                                                                 ship to the same abusive citizen or law-                  graph (b) of this section, if, on the date
                                                                 ful permanent resident of the United                      of the petitioner’s death, the bene-
                                                                 States.                                                   ficiary satisfies the requirements of
                                                                    (i) Automatic conversion of preference                 paragraph (b)(1) of this section. If the
                                                                 classification—(1) By change in bene-                     petitioner dies before the petition is
                                                                 ficiary’s marital status. (i) A currently                 approved, but, on the date of the peti-
                                                                 valid petition previously approved to                     tioner’s death, the beneficiary satisfies
                                                                 classify the beneficiary as the unmar-                    the requirements of paragraph (b)(1) of
                                                                 ried son or daughter of a United States                   this section, then the petition shall be
                                                                 citizen under section 203(a)(1) of the                    adjudicated as if it had been filed as a
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                                                                 Act shall be regarded as having been                      Form I–360, Petition for Amerasian,

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                                                                 § 204.3                                                                  8 CFR Ch. I (1–1–08 Edition)

                                                                 Widow(er) or Special Immigrant under                      as provided for in section 101(b)(1)(F) of
                                                                 paragraph (b) of this section.                            the Act.
                                                                   (2) By the beneficiary’s attainment of                    (1) Except as provided in paragraph
                                                                 the age of twenty-one years. A currently                  (a)(2) of this section, a child who meets
                                                                 valid petition classifying the child of a                 the definition of orphan contained in
                                                                 United States citizen as an immediate                     section 101(b)(1)(F) of the Act is eligi-
                                                                 relative under section 201(b) of the Act                  ble for classification as the immediate
                                                                 shall be regarded as having been ap-                      relative of a U.S. citizen if:
                                                                 proved for preference status under sec-                     (i) The U.S. citizen seeking the
                                                                 tion 203(a)(1) of the Act as of the bene-                 child’s immigration can document that
                                                                 ficiary’s twenty-first birthday. The                      the citizen (and his or her spouse, if
                                                                 beneficiary’s priority date is the same                   any) are capable of providing, and will
                                                                 as the date the petition for section                      provide, proper care for an alien or-
                                                                 201(b) classification was filed.                          phan; and
                                                                   (3) By the petitioner’s naturalization.                   (ii) The child is an orphan under sec-
                                                                 Effective upon the date of naturaliza-                    tion 101(b)(1)(F) of the Act.
                                                                 tion of a petitioner who had been law-                    A U.S. citizen may submit the docu-
                                                                 fully admitted for permanent resi-                        mentation necessary for each of these
                                                                 dence, a currently valid petition ac-                     determinations separately or at one
                                                                 cording preference status under section                   time, depending on when the orphan is
                                                                 203(a)(2) of the Act to the petitioner’s                  identified.
                                                                 spouse and unmarried children under                         (2) Form I–600A or Form I–600 may
                                                                 twenty-one years of age shall be re-                      not be filed under this section on or
                                                                 garded as having been approved for im-                    after the Convention effective date, as
                                                                 mediate relative status under section                     defined in 8 CFR 204.301, on behalf of a
                                                                 201(b) of the Act. Similarly, a currently                 child who is habitually resident in a
                                                                 valid petition according preference sta-                  Convention country, as defined in 8
                                                                 tus under section 203(a)(2) of the Act                    CFR 204.301. On or after the Convention
                                                                 for the unmarried son or daughter over                    effective date, USCIS may approve a
                                                                 twenty-one years of age shall be re-                      Form I–600 on behalf of a child who is
                                                                 garded as having been approved under                      habitually resident in a Convention
                                                                 section 203(a)(1) of the Act. In any case                 country only if the Form I–600A or
                                                                 of conversion to classification under                     Form I–600 was filed before the Conven-
                                                                 section 203(a)(1) of the Act, the bene-                   tion effective date.
                                                                 ficiary’s priority date is the same as                      (b) Definitions. As used in this sec-
                                                                 the date the petition for classification                  tion, the term:
                                                                 under section 203(a)(2) of the Act was                      Abandonment by both parents means
                                                                 properly filed. A self-petition filed                     that the parents have willfully for-
                                                                 under      section     204(a)(1)(B)(ii) or                saken all parental rights, obligations,
                                                                 204(a)(1)(B)(iii) of the Act based on the                 and claims to the child, as well as all
                                                                 relationship to an abusive lawful per-                    control over and possession of the
                                                                 manent resident of the United States                      child, without intending to transfer, or
                                                                 for classification under section 203(a)(2)                without transferring, these rights to
                                                                 of the Act will not be affected by the                    any specific person(s). Abandonment
                                                                 abuser’s naturalization and will not be                   must include not only the intention to
                                                                 automatically converted to a petition                     surrender all parental rights, obliga-
                                                                 for immediate relative classification.                    tions, and claims to the child, and con-
                                                                                                                           trol over and possession of the child,
                                                                 [57 FR 41057, Sept. 9, 1992, as amended at 60
                                                                                                                           but also the actual act of surrending
                                                                 FR 34090, June 30, 1995; 60 FR 38948, July 31,
                                                                 1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62        such rights, obligations, claims, con-
                                                                 FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13,             trol, and possession. A relinquishment
                                                                 1997; 71 FR 35749, June 21, 2006; 72 FR 19107,            or release by the parents to the pro-
                                                                 Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007]                 spective adoptive parents or for a spe-
                                                                                                                           cific adoption does not constitute
                                                                 § 204.3 Orphan cases under section                        abandonment. Similarly, the relin-
                                                                     101(b)(1)(F) of the Act (non-Conven-                  quishment or release of the child by
                                                                     tion cases).                                          the parents to a third party for custo-
                                                                   (a) This section addresses the immi-                    dial care in anticipation of, or prepara-
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                                                                 gration classification of alien orphans                   tion for, adoption does not constitute

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DOCUMENT INFO
Description: Self Sworn Birth Certificate Affidavit document sample