A. Divorce Prior to Filing the Self-Petition

1. Self-Petitioning Spouse’s Divorce

Self-petitioning spouses must have a legally valid marriage to their abusive U.S. citizen or lawful permanent resident (LPR) spouse at the time the self-petition is filed.^[1] In certain circumstances, however, self-petitioning spouses may continue to be eligible for Violence Against Women Act (VAWA) benefits if the marriage was terminated due to divorce or death prior to filing the self-petition.^[2] If the qualifying marriage was legally terminated^[3] prior to filing the self-petition, however, self-petitioning spouses may continue to be eligible if they are otherwise eligible for a self-petition and:

1. File a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) within the 2-year period immediately following the termination of the marriage; and
2. Can sufficiently demonstrate that the legal termination of the marriage was connected to the battery or extreme cruelty perpetrated by the U.S. citizen or LPR spouse.^[4]

The requirement that a self-petitioner file within 2 years following the termination of the marriage is a condition of eligibility for which there is no waiver or equitable tolling available. The 2-year period cannot be equitably tolled because the statute allows for self-petitioning during the marriage and creates a cut-off date for filing when the marriage has terminated.

Evidence

Self-petitions filed within 2 years of the legal termination of the marriage must include evidence that the marriage was legally terminated, such as a final divorce decree or annulment, and that the termination was connected to the battery or extreme cruelty.^[5] The specific legal ground for a divorce or annulment does not need to be abuse.

Examples of evidence demonstrating the connection between the legal termination of the marriage and the battery or extreme cruelty may include, but are not limited to, the following:

1. A detailed, specific, and reliable affidavit from the self-petitioner;
2. Detailed, specific, and reliable affidavits from third parties with direct knowledge of the events sworn to; or
3. Final divorce decrees or annulments.

2. Termination of a Step-Relationship Due to Divorce or Death

Divorce

If the marriage between a parent and a stepparent terminates due to divorce, a self-petitioning stepchild and a self-petitioning stepparent continue to be eligible for the self-petition.^[6] A stepchild of an abusive U.S. citizen or LPR parent and a stepparent of an abusive U.S. citizen son or daughter may continue to be eligible to self-petition despite the divorce provided that:

1. The stepchild had not reached 18 years of age at the time the marriage creating the step relationship occurred;^[7] and
2. The step relationship existed, by law, at the time of the abuse.

Death

If the marriage between a parent and stepparent terminates due to the death of the biological or legal parent, a self-petitioning stepchild and a self-petitioning stepparent may continue to establish eligibility for the self-petition if they can provide evidence of an ongoing family relationship with the abusive U.S. citizen or LPR stepparent or stepchild, respectively, at the time of filing.^[8]

As a matter of policy, USCIS requires evidence demonstrating that the step relationship continued after filing.^[9] Additionally, the stepchild or stepparent may continue to be eligible to self-petition despite the termination of the marriage due to the death of the biological or legal parent provided that:

1. The stepchild had not reached 18 years of age at the time the marriage creating the step relationship occurred;^[10]
2. The step relationship existed, by law, at the time of the abuse; and
3. The step relationship existed as a matter of fact at the time the self-petition is filed.

Evidence of an ongoing family relationship may include financial and emotional support and any type of communication between the stepchild and stepparent, such as an email, social media post, or any other evidence of contact between them.

B. Self-Petitioner’s Marriage or Remarriage

1. Self-Petitioning Child’s Marriage

Self-petitioning children must be unmarried when the self-petition is filed and when the self-petition is approved.^[11] A self-petitioning child who marries after filing the self-petition and remains married while the self-petition is pending is no longer eligible for immigrant classification as a child, as there are no VAWA provisions for married sons and daughters.^[12] However, a self-petitioning child who marries after filing the self-petition but whose marriage terminates prior to a final decision on the self-petition may remain eligible under VAWA.^[13] USCIS notes that due to processing times and backlogs, a self-petitioner does not know when a Form I-360 will be adjudicated, as such, a self-petitioning child who is married after filing a self-petition may be denied for lack of eligibility prior to obtaining a divorce or providing evidence of the divorce to USCIS.^[14]

2. Self-Petitioning Spouse’s Remarriage

The officer must deny the self-petition when a self-petitioner remarries before issuance of a final agency decision.^[15] Self-petitioning spouses may remarry after the self-petition is approved without impacting the approved self-petition or their eligibility for an immigrant visa or adjustment of status.

C. Marriage-Related Prohibitions on Self-Petition Approval

1. Self-Petitioning Spouses: Marriage While in Removal Proceedings

When USCIS adjudicates a spousal self-petition, certain statutory bars may apply. There is, for example, a prohibition on approving a self-petition if the marriage creating the qualifying relationship occurred while the self-petitioner was in removal proceedings.^[19]

The self-petitioner may overcome the general prohibition by requesting an exemption in writing with Form I-360 and submitting evidence demonstrating the following:^[20]

1. The self-petitioner has resided outside the United States for a 2-year period beginning after the date of the marriage;^[21] or
2. The self-petitioner provides clear and convincing evidence that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place, the marriage was not entered into to circumvent immigration laws, and no fee or other consideration was given for the filing of the self-petition.^[22]

If USCIS denied a prior filing because the marriage took place during removal proceedings, and the self-petitioner then resided outside the United States for a period of 2 years following the marriage, the self-petitioner may file a new petition after the 2-year period. In addition, a denial does not prevent USCIS from considering a new petition or a motion to reopen if removal proceedings are terminated after the denial for any reason except the self-petitioner's departure from the United States.^[23]

Although self-petitioners may submit similar evidence to establish a good faith marriage or to qualify for the good faith marriage exemption while in removal proceedings, they must meet a heightened standard of proof when seeking a good faith marriage exemption. Generally, self-petitioners must establish that they entered into the marriage in good faith by a preponderance of the evidence.^[24] To be eligible for a good faith marriage exemption while in removal proceedings, however, a self-petitioner who married a U.S. citizen or LPR while in removal proceedings must establish good faith entry into the marriage by the more stringent clear and convincing evidence standard.^[25] The heightened standard applies only to the good faith marriage exemption determination; all other eligibility requirements are reviewed under the preponderance of the evidence standard.

The requirement that no fee or other consideration was given for the filing of the petition does not refer to fees paid to attorneys, notarios, or other persons who assisted with filing the self-petition.^[26] Rather, this refers to instances where a fee or other consideration was paid in connection with a fraudulent marriage. If a fee or other consideration was paid in order to enter into a fraudulent marriage or to obtain an immigration benefit through a fraudulent marriage, the self-petitioner is ineligible for the good faith marriage exemption.

If the self-petitioner seeks a good faith marriage exemption by showing that the marriage was entered into in good faith and not for the purpose of circumventing immigration laws, examples of the types of evidence the self-petitioner may submit include, but are not limited to:

1. Documentation showing joint ownership of property;
2. A lease showing joint tenancy of a common residence;
3. Documentation showing commingling of financial resources;
4. Birth certificate of any children born to the self-petitioner and abusive spouse; or
5. Detailed, specific, and reliable affidavits from third parties who know about the bona fides of the marital relationship.^[27]

2. Prior Marriage Fraud Bar

Self-petitioning spouses are required to demonstrate a qualifying spousal relationship and that their marriage was entered into in good faith.^[28] Even if the self-petitioner meets these two eligibility requirements, USCIS cannot approve any future petition, including the self-petitioner’s Form I-360, where USCIS determines there is substantial and probative evidence that the self-petitioner previously:

1. Had been granted or has sought to be accorded an immediate relative or family-based preference status as the spouse of a U.S. citizen or LPR based on a marriage that USCIS has determined the self-petitioner entered into for the purpose of evading immigration laws; or
2. Attempted or conspired to enter into a marriage for the purpose of evading immigration laws.^[29]

Where USCIS determines there is substantial and probative evidence that the self-petitioner previously engaged in marriage fraud, the burden shifts to the self-petitioner to overcome the finding.^[30] Officers adjudicating the self-petition may not rely solely on a prior finding of marriage fraud but must review the prior finding of fraud and make a separate and independent determination that the self-petitioner previously engaged in marriage fraud.^[31]

USCIS provides self-petitioners with an opportunity to rebut the evidence that they entered into or conspired to enter into a prior marriage for the purpose of evading immigration laws by issuing a Notice of Intent to Deny (NOID), which gives the self-petitioner sufficient notice and an opportunity to rebut the derogatory information.^[32]

D. Death of the U.S. Citizen, Lawful Permanent Resident, or Self-Petitioner

Self-petitioners must demonstrate a qualifying relationship with the abusive U.S. citizen or LPR relative to be eligible for the self-petition.^[33] Historically, if a petitioner for a family-based immigrant visa petition died while the petition was pending or after it was approved and the beneficiary had not yet become an LPR, USCIS denied the petition if it was pending or revoked the petition if it was approved.^[34]

Over time, however, Congress recognized the inequities this created for some aliens in these situations and created provisions to allow surviving beneficiaries to continue the immigration process despite the death of certain petitioning relatives and principal beneficiaries.^[35]

Currently, for self-petitioners and their derivatives, the impact of the U.S. citizen, LPR, or self-petitioner’s death on the validity of the self-petition depends on who died, who the surviving relative is, and whether the self-petition was filed at the time of the death.

Self-petitioners and derivative beneficiaries must notify USCIS of the death of the qualifying relative or the self-petitioner and submit evidence of the death, such as a death certificate.

1. Abusive U.S. Citizen’s Death

Abusive U.S. Citizen Dies Prior to the Filing of the Self-Petition

Self-petitioning spouses or parents whose abusive U.S. citizen relative died before they filed a self-petition continue to remain eligible to file a self-petition for 2 years after the death.^[36] The requirement that a self-petitioner file within 2 years following the death of the U.S. citizen relative is a condition of eligibility for which there is no waiver or equitable tolling available. The 2-year period cannot be equitably tolled because the statute allows for self-petitioning while the qualifying relative is living and creates a cut-off date for filing when the relative has died.

Note that for abused parents to be eligible to self-petition, the U.S. citizen son or daughter must have been at least 21 years old when the son or daughter died. If a self-petitioning child’s U.S. citizen parent dies before the child files a self-petition, however, the child is ineligible for VAWA benefits.^[37]

Abusive U.S. Citizen Relative Dies While the Self-Petition is Pending or Approved

If a self-petitioning spouse, child, or parent had a pending or approved self-petition at the time of the U.S. citizen’s death, the death does not impact their eligibility for the pending self-petition or require revocation of an approved self-petition.^[38] The self-petitioner remains eligible to apply for an immigrant visa or adjustment of status after the self-petition is approved.^[39]

The table below provides a summary of the impact that the death of the abusive U.S. citizen relative has on a self-petition based on the type of self-petition that is filed and if the self-petition was filed at the time of the U.S. citizen’s death.

2. Abusive Lawful Permanent Resident’s Death

If the LPR relative dies before an abused spouse or child files a self-petition, the self-petitioning spouse or child is ineligible for VAWA benefits. If the abusive LPR relative dies while a self-petition is pending or was previously approved, USCIS may, in its discretion, approve the self-petition or continue adjudication for an adjustment of status application based on an approved self-petition in certain circumstances under INA 204(l).^[40] In any such case, USCIS determines, in the unreviewable discretion of the Secretary, whether the approval would not be in the public interest.^[41] In order to remain eligible for the self-petition under INA 204(l), self-petitioners must demonstrate:

1. He or she resided in the United States when the LPR relative died; and
2. He or she continue to reside in the United States on the date the pending self-petition or adjustment of status application is approved.^[42]

After the self-petitioner establishes these two requirements, USCIS determines, in the unreviewable discretion of the Secretary, whether the approval would not be in the public interest.^[43] When there are derivative children beneficiaries, if the self-petitioner or any one derivative beneficiary meets the residence requirement, then, as a matter of discretion, USCIS may approve the self-petition or application for adjustment of status. The self-petitioner and all beneficiaries may be eligible to immigrate to the same extent that would have been permitted if the LPR relative had not died. It is not necessary for the self-petitioner and each derivative child to meet the residence requirements.

3. Self-Petitioner’s Death

If a self-petitioning spouse or self-petitioning child dies while the self-petition is pending or after it is approved, USCIS may approve the self-petition or continue adjudication for an adjustment of status application based on an approved self-petition for any derivative children of the self-petitioner as a matter of discretion under INA 204(l). Derivative beneficiaries do not have to be included on the self-petition to be considered for relief under INA 204(l) as long as they are eligible as derivative beneficiaries.

E. Loss or Renunciation of U.S. Citizenship or Loss of Lawful Permanent Resident Status

A self-petitioner must demonstrate a qualifying relationship to a U.S. citizen or LPR at the time of filing to be eligible for a self-petition.^[44] Therefore, historically, if abusive U.S. citizen or LPR relatives had lost or renounced their U.S. citizenship or LPR status, self-petitioners were no longer eligible for the self-petition.

Congress recognized, however, that an abuser’s loss of U.S. citizenship or LPR status may have been related to an incident of domestic violence, and that the loss would impact a self-petitioner’s eligibility for VAWA benefits. So when Congress passed the Battered Immigrant Women Protection Act (BIWPA) in 2000, it amended the immigration laws to preserve self-petitioning eligibility in certain cases where abusers lost their U.S. citizenship or LPR status for a reason related to an incident of domestic violence, as long as the self-petition is filed within 2 years of the loss or renunciation.^[45]

BIWPA also provided that if abusive U.S. citizens or LPRs lost their status after the self-petition was filed, then self-petitioners would retain their eligibility despite the loss of status without having to show a connection between the loss of U.S. citizenship or LPR status and an incident of domestic violence.^[46]

Self-petitioners must notify USCIS if their qualifying relative lost or renounced U.S. citizenship or LPR status. Officers may check USCIS electronic systems to confirm the loss or renunciation of citizenship or LPR status.

1. Loss or Renunciation of U.S. Citizenship or Loss of Lawful Permanent Resident Status Prior to Filing

If abusive U.S. citizen or LPR relatives lost or renounced their U.S. citizenship or LPR status before the self-petition was filed, the self-petitioner may remain eligible only if the loss or renunciation of status was related or due to an incident of domestic violence. The loss or renunciation must also have occurred within the 2-year period immediately preceding the filing of the self-petition.^[47]

The requirement that a self-petitioner file within 2 years following the qualifying relative’s loss or renunciation of U.S. citizenship or LPR status is a condition of eligibility for which there is no waiver or equitable tolling available. The 2-year period cannot be equitably tolled because the statute allows for self-petitioning while the qualifying relative maintains U.S. citizenship or LPR status and creates a cut-off date for filing when the qualifying relative has lost U.S. citizenship or LPR status.

Note that for self-petitioning parents, the abusive son or daughter must have been 21 years of age or older when the son or daughter’s citizenship was lost or renounced.

USCIS considers the full history of domestic violence when determining whether the abuser’s loss or renunciation of status is related to an incident of domestic violence. When considering whether the loss or renunciation of status was related to an incident of domestic violence, USCIS determines whether the evidence submitted establishes:

The circumstances surrounding the loss or renunciation of status;

1. Whether the loss or renunciation of status is related to the incident of domestic violence; and
2. The loss or renunciation of status occurred within the 2-year period immediately preceding the filing of the self-petition.

Examples of evidence demonstrating the above requirements may include, but are not limited to:

1. A detailed, specific, and reliable statement or affidavit from the self-petitioner;
2. Police, child protective services, and other related reports;
3. Court records; and
4. Immigration records.

2. Loss or Renunciation of U.S. Citizenship or Loss of Lawful Permanent Resident Status After Filing

The loss or renunciation of the qualifying relative’s U.S. citizenship or LPR status after the self-petition is filed does not impact a self-petitioning spouse or child’s eligibility or adversely affect an approved self-petition. There is no requirement to show a relation between the loss or renunciation of U.S. citizenship or LPR status and an incident of battery or extreme cruelty. The self-petitioner remains eligible for VAWA benefits.^[48] In addition, loss or renunciation of the qualifying relative’s U.S. citizenship or LPR status does not adversely affect an approved VAWA self-petitioner’s ability to adjust status.^[49]

Self-petitioning parents, however, whose U.S. citizen sons or daughters have denaturalized or lost or renounced their U.S. citizenship after the self-petition is filed are no longer eligible for the self-petition.^[50] If a self-petitioning parent’s self-petition was previously approved, it may be revoked in such circumstances.

F. Lawful Permanent Resident’s Naturalization

If abusive LPRs naturalize after their spouse or child files a self-petition, the self-petitioning spouse or child is automatically reclassified as the spouse or child of a U.S. citizen.^[51] The self-petitioner does not need to file a new self-petition; the reclassification occurs regardless of whether the self-petition remains pending or is approved at the time of the naturalization.^[52] The self-petitioner is reclassified even if the abusive spouse or parent acquires citizenship after a divorce or termination of parental rights.^[53]

G. Child Turning 21 Years Old

Self-petitioning and derivative children must be under 21 years old and unmarried in order to be eligible as self-petitioners or be included as derivative beneficiaries on the self-petition at the time of filing.^[54] However, if abused children turn 21 years old before they are able to file a self-petition they may continue to remain eligible to file the self-petition as a child in certain circumstances as long as they remain unmarried.^[55]

1. Self-Petitioning Child Turning 21 Years Old Before Filing the Self-Petition

In the past, otherwise eligible sons and daughters of U.S. citizens and LPRs were precluded from filing a self-petition if they reached age 21 before the self-petition could be filed. The inability to file a self-petition before turning 21 years old may have been due to a number of reasons, including the nature of the abuse or the time period that the abuse took place.

The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), however, amended the Immigration and Nationality Act (INA) by adding a new provision that permitted the late filing of a self-petition in certain circumstances to expand protections for abused children who were unable to file a self-petition before turning 21 years old.^[56]

Self-petitioning children may remain eligible to file a self-petition as a child even after turning 21 years old but before turning 25 years old if they are unmarried and can demonstrate the following:

1. They were eligible to file the self-petition on the day before they turned 21; and
2. The abuse was one central reason for the delay in filing.^[57]

Self-petitioners must have been qualified to file the self-petition on the day before they turned 21 years old. This means that they must have met all eligibility requirements on that date. For example, if the abuse took place only after they turned 21, then they were not eligible to file the self-petition on the day before they turned 21 years old. In addition to meeting all of the eligibility requirements as of the day before the self-petitioner turned 21 years old, the abuse must have been “one central reason” for the self-petitioner’s delay in filing.^[58] The battery or extreme cruelty is not required to be the sole reason for the delay in filing, but the connection between the battery or extreme cruelty and the delay in filing must be central and more than tangential.

If self-petitioners are eligible to file after turning 21 years old, USCIS treats them as if the self-petition had been filed on the day before they turned 21 years old. If USCIS approves the self-petition, however, the self-petitioner’s continued eligibility and subsequent classification for visa issuance or adjustment of status is governed by the Child Status Protection Act (CSPA) or the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), whichever is appropriate.^[59]

Evidence

Self-petitioners must submit evidence that they were eligible to file the self-petition before they turned 21 years old and that the abuse was one central reason for the delay. USCIS considers the totality of the circumstances in making these determinations.

Examples of evidence that may demonstrate that the self-petitioner’s abuse was one central reason for the delay may include, but are not limited to:

1. Reports detailing incidents of abuse that occurred prior to the self-petitioner turning 21 years old from police, judges, court officials, medical personnel, counselors, social workers or other social service agency personnel, or school officials;
2. Evidence that the self-petitioner sought refuge at a shelter because of the abuse that occurred prior to the self-petitioner turning 21 years old;
3. A detailed, specific, and reliable affidavit or personal statement from the self-petitioner describing the battery or extreme cruelty that occurred prior to the self-petitioner turning 21 years old; or
4. An explanation for how the abuse was one central reason for the delay in filing the self-petition.

2. Self-Petitioning Child or Derivative Turns 21 Years Old After the Self-Petition is Filed

Under CSPA, if a child turns 21 years old after the self-petition is filed but before it is adjudicated, the INA includes protections for self-petitioning and derivative children to retain eligibility after turning 21 years old as long as they remain unmarried.^[60] Self-petitioning and derivative children may continue to be classified as children for immigration purposes under the CSPA in certain circumstances.^[61]

If children are not eligible under CSPA, they may be eligible under VTVPA, which provides that self-petitioning children who turn 21 years old after the self-petition is filed will automatically be considered self-petitioners for preference status under INA 203 as long as they remain unmarried.^[62]

Derivative children who turn 21 years old after the self-petition is filed will automatically be considered a self-petitioner with the same priority date as the self-petitioner who originally filed the self-petition, as long as the child remains unmarried.^[63]

No new petition is required for either a self-petitioning or derivative child.^[64] Self-petitioning or derivative children may marry after the self-petition is approved and remain eligible for an immigrant visa or adjustment of status in the appropriate preference category to their situation.^[65] They do not need to file a new self-petition and will retain the priority date from the approved self-petition.

Footnotes

[^ 1] See INA 204(a)(1)(A)(iii)(II)(aa) and INA 204(a)(1)(B)(ii)(II)(aa). See 8 CFR 204.2(c)(1)(i)-(iii).

[^ 2] See INA 204(a)(1)(A)(iii)(II)(aa)(CC) and INA 204(a)(1)(B)(ii)(II)(aa)(CC). For more information on marriage termination due to death, see Section D, Death of the U.S. Citizen, Lawful Permanent Resident, or Self-Petitioner [3 USCIS-PM D.3(D)]. Although 8 CFR 204.2(c)(1)(i)(A) requires that the self-petitioner demonstrate an existing marriage to the abuser at the time of filing, the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000) amended this requirement to allow abused spouses to remain eligible for VAWA benefits if the marriage was terminated due to divorce or death in certain circumstances. VTVPA supersedes this part of the regulation.

[^ 3] USCIS generally recognizes the legal termination of a marriage in cases where the termination is valid under the laws of the jurisdiction where the marriage is terminated, or the jurisdiction of a subsequent marriage recognizes the validity of the termination.

[^ 4] See INA 204(a)(1)(A)(iii)(ii)(aa)(CC)(ccc) and INA 204(a)(1)(B)(ii)(II)(aa)(CC)(bbb).

[^ 5] See INA 204(a)(1)(A)(iii)(ii)(aa)(CC)(ccc) and INA 204(a)(1)(B)(ii)(II)(aa)(CC)(bbb).

[^ 6] See Arguijo v. USCIS, 991 F.3d 736 (7th Cir. 2021), holding that divorce does not terminate a stepchild relationship for the purposes of eligibility for a VAWA self-petition.

[^ 7] See INA 101(b)(1)(B).

[^ 8] See Matter of Pagnerre (PDF), 17 I&N Dec. 688 (BIA 1971).

[^ 9] See INA 204(a)(1)(A)(vi) and INA 204(a)(1)(B)(v).

[^ 10] See INA 101(b)(1)(B).

[^ 11] See INA 101(b)(1). See 8 CFR 204.2(e)(1)(ii).

[^ 12] See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(B)(iii) requiring eligibility for immigrant classification under INA 201(b)(2)(A)(i) and INA 203(a)(2)(A).

[^ 13] See INA 201(f). See 8 CFR 204.2(e)(1)(ii).

[^ 14] See 8 CFR 103.2(b)(1) (“An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication.”).

[^ 15] See INA 204(a)(1)(A)(II)(aa) and INA 204(a)(1)(B)(II)(aa). See 8 CFR 204.2(c)(1)(ii). See Delmas v. Gonzalez, 422 F.Supp.2d 1299 (S.D. Fla. 2005) (self-petitioner’s remarriage prior to filing self-petition was disqualifying). Note that 8 CFR 204.2(c)(1)(ii) states: “The self-petitioning spouse must be legally married to the abuser when the petition is properly filed with the Service. A spousal self-petition must be denied if the marriage to the abuser legally ended through annulment, death, or divorce before that time.” This portion of the regulation has been superseded by the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF) (October 28, 2000), which removed the requirement for the self-petitioner to remain married to the abuser at the time the self-petition is filed. The remainder of 8 CFR 204.2(c)(1)(ii) remains valid: “After the self-petition has been properly filed, the legal termination of the marriage will have no effect on the decision made on the self-petition. The self-petitioner’s remarriage, however, will be a basis for denial of a pending self-petition.”

[^ 16] See 8 CFR 204.2(c)(1)(ii).

[^ 17] See 8 CFR 205.1(a)(3)(i)(E) and 8 CFR 205.2.

[^ 18] See INA 204(h).

[^ 19] See INA 204(g) and INA 245(e)(3). See 8 CFR 204.2(c)(1)(iv).

[^ 20] See 8 CFR 204.2(a)(1)(iii). USCIS considers the same evidence submitted for a spousal-based Petition for Alien Relative (Form I-130) under 8 CFR 204.2(a)(1)(iii) for self-petitioning spouses.

[^ 21] See INA 204(g). See 8 CFR 204.2(a)(1)(iii).

[^ 22] See INA 245(e)(3). See 8 CFR 204.2(a)(1)(iii).

[^ 23] See 8 CFR 204.2(a)(1)(iii)(D).

[^ 24] To meet this standard, the alien must prove a claimed fact is more likely than not to be true. See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010). For more information about the good faith marriage requirement for self-petitioning spouses, see Chapter 2, Eligibility Requirements and Evidence, Section C, Good Faith Marriage (Self-Petitioning Spouses Only) [3 USCIS-PM D.2(C)].

[^ 25] See INA 245(e)(3) See Matter of Arthur (PDF), 20 I&N Dec. 475, 478 (BIA 1992) and Pritchett v. I.N.S., 993 F.2d 80, 85 (5th Cir. 1993) (acknowledging clear and convincing evidence as an exacting standard).

[^ 26] See INA 245(e)(3).

[^ 27] See 8 CFR 204.2(a)(1)(iii)(B)(5). Third parties submitting affidavits may be required to testify before a USCIS officer as to the information contained in the affidavit. Affidavits should be sworn to or affirmed by persons not parties to the petition who have personal knowledge of the marital relationship. Each affidavit contains the full names, addresses, and dates and places of birth of the persons providing the affidavit and their relationship to the spouses, if any. The affidavit contains complete information and details explaining how the affiant’s acquired knowledge of the marriage. Self-petitioners are not required to demonstrate the unavailability of primary or secondary evidence, but affidavits should be supported, if possible, by one or more types of documentary evidence listed in this section. All credible evidence submitted is considered as described in Chapter 5, Adjudication, Section B, Review of Evidence, Subsection 2, Any Credible Evidence Provision [3 USCIS-PM D.5(B)(2)]. See INA 204(a)(1)(J). See 8 CFR 103.2(b)(2)(iii), 8 CFR 204.2(c)(2)(i), and 8 CFR 204.2(e)(2)(i). However, USCIS determines the credibility and weight to be given to evidence.

[^ 28] See INA 204(a)(1)(A)(iii) and INA 204(a)(1)(B)(ii). See 8 CFR 204.2(c)(1)(i).

[^ 29] See INA 204(c). See 8 CFR 204.2(a)(1)(ii). See Matter of Singh, 27 I&N Dec. 598 (BIA 2019), Matter of Pak, 28 I&N Dec. 113 (BIA 2020), Matter of Tawfik (PDF), 20 I&N Dec. 166 (BIA 1990) and Matter of R.I. Ortega, 28 I&N Dec. 9 (BIA 2020). USCIS considers the same evidence submitted for a spousal-based Petition for Alien Relative (Form I-130) under 8 CFR 204.2(a)(1)(ii) for self-petitioning spouses.

[^ 30] Substantial and probative evidence is more than a preponderance of the evidence, but less than clear and convincing evidence; that is, the evidence has to be more than probably true that the marriage is fraudulent. See Matter of Singh, 27 I&N Dec. 598 (BIA 2019) and Matter of Pak, 28 I&N Dec. 113 (BIA 2020). The substantial and probative evidence standard requires the examination of all relevant evidence and a determination as to whether such evidence, when viewed in its totality, establishes, with sufficient probability, that the marriage is fraudulent. Both direct and circumstantial evidence may be considered in determining whether there is substantial and probative evidence of marriage fraud under INA 204(c), and circumstantial evidence alone may be sufficient to constitute substantial and probative evidence. See Matter of Pak, 28 I&N Dec. 113 (BIA 2020). For more information, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].

[^ 31] See Matter of Tawfik (PDF), 20 I&N Dec. 166 (BIA 1990).

[^ 32] See 8 CFR 103.2(b)(16)(i).

[^ 33] Self-petitioners must demonstrate a qualifying relationship with the abusive U.S. citizen or LPR relative to be eligible for the self-petition. Historically, if a petitioner for a family-based immigrant visa petition died while the petition was pending or after it was approved and the beneficiary had not yet become an LPR, USCIS denied the petition if it was pending or revoked the petition if it was approved.

Over time, however, Congress recognized the inequities this created for some aliens in these situations and created provisions to allow surviving beneficiaries to continue the immigration process despite the death of certain petitioning relatives and principal beneficiaries.

[^ 34] See 8 CFR 205.1(a)(3)(i). See Matter of Sano (PDF), 19 I&N Dec. 299 (BIA 1985) and Matter of Varela (PDF), 13 I&N Dec. 453 (BIA 1970).

[^ 35] See INA 201(b)(2)(A)(i), INA 204(l), INA 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa), INA 204(a)(1)(A)(vii), and INA 204(a)(1)(A)(vi).

[^ 36] See INA 204(1)(A)(iii)(II)(aa)(CC)(aaa) and INA 204(a)(1)(A)(vii). Note that spouses of U.S. citizens who have not legally separated or divorced at the time of the U.S. citizen’s death may also be eligible as widow(er)s under INA 201(b)(2)(A)(i) if they file a petition within 2 years of the death.

[^ 37] See INA 204(a)(1)(A)(iv).

[^ 38] See INA 204(a)(1)(A)(vi).

[^ 39] See INA 204(a)(1)(A)(vi).

[^ 40] See INA 204(l)(2)(B).

[^ 41] See INA 204(l)(1).

[^ 42] See INA 204(l). For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9].

[^ 43] See INA 204(l)(1).

[^ 44] See INA 204(a)(1). See 8 CFR 204.2(c)(2)(ii) and 8 CFR 204.2(e)(2)(ii).

[^ 45] See Title V of Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000). See INA 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb), INA 204(a)(1)(A)(iv), INA 204(a)(1)(A)(vii), and INA 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa)(iii).

[^ 46] See INA 204(a)(1)(A)(vi).

[^ 47] See INA 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb), INA 204(a)(1)(A)(iv), INA 204(a)(1)(A)(vii), and INA 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa)(iii).

[^ 48] See INA 204(a)(1)(A)(vi) and INA 204(a)(1)(B)(v)(1).

[^ 49] See INA 204(a)(1)(A)(vi) and INA 204(a)(1)(B)(v)(1).

[^ 50] See INA 204(a)(1)(A)(vi)-(vii). There are no statutory provisions that allow for continued eligibility for self-petitioning parents whose U.S. citizen sons or daughters have denaturalized or lost or renounced their U.S. citizenship after the self-petition is filed.

[^ 51] See INA 204(a)(1)(B)(v)(II).

[^ 52] See INA 204(a)(1)(B)(v)(II).

[^ 53] See INA 204(a)(1)(B)(v)(II).

[^ 54] See INA 101(b)(1). See 8 CFR 204.2(c)(4) and 8 CFR 204.2(e)(1)(ii). 8 CFR 204.2(e)(4) has been superseded by the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF) (October 28, 2000), which allows children of child self-petitioners to be classified as derivative beneficiaries under INA 204(a)(1)(A)(iv) and INA 204(a)(1)(B)(iii).

[^ 55] See INA 204(a)(1)(D)(v).

[^ 56] See Section 805(c) of VAWA 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960 (January 5, 2006) and Section 6(a) of the Violence Against Women and Department of Justice Reauthorization Act of 2005 Technical Amendments, Pub. L. 109-271 (PDF), 120 Stat. 750 (August 12, 2006). See INA 204(a)(1)(D)(v).

[^ 57] See INA 204(a)(1)(D)(v).

[^ 58] See INA 204(a)(1)(D)(v).

[^ 59] See Pub. L. 107-208 (PDF), 116 Stat. 927 (August 6, 2002).

[^ 60] See Pub. L. 107-208 (PDF), 116 Stat. 927 (August 6, 2002) adding INA 201(f) and INA 203(h).

[^ 61] See INA 201(f) and INA 203(h). For more information on CSPA, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].

[^ 62] See Title V of Pub. L. 106-386, 114 Stat. 1464 (October 28, 2000) adding INA 204(a)(1)(D)(i)(I) and INA 203(a)(1)-(3).

[^ 63] See INA 204(a)(1)(D)(i)(III).

[^ 64] See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III).

[^ 65] See INA 204(a)(1)(D)(i) and INA 204(h).