A. Filing Requirements and Initial Review

An alien seeking to self-petition under the Violence Against Women Act (VAWA) must properly file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) with supporting evidence in accordance with the Form I-360 instructions.^[1] USCIS considers Form I-360 as properly filed if it:

1. Is submitted on the current edition of the form;
2. Is filed at the correct filing location; and
3. Has a valid signature.^[2]

When initially reviewing the Form I-360, USCIS first determines whether the Form I-360 has been properly filed according to the above criteria. If the self-petition is not properly filed, USCIS rejects the filing and returns it to the self-petitioner.^[3] If the self-petition is properly filed, USCIS sends the self-petitioner a receipt notice with a receipt, or filing, date. There is no fee when Form I-360 is filed as a VAWA self-petition.^[4] USCIS officers adhere to current agency guidance and procedures regarding signature requirements.^[5]

Self-petitioning spouses, children, and parents of U.S. citizens may seek to adjust status as immediate relatives by filing an Application to Register Permanent Residence or Adjust Status (Form I-485) at any time, because visas are immediately available for immediate relatives.^[6]

1. Priority Dates

If self-petitioners were beneficiaries of a previously filed Petition for Alien Relative (Form I-130) filed by the abusive qualifying relative, they may retain the priority date from the Form I-130. The earlier priority date may be assigned without regard to the current validity of the visa petition. Officers may verify a claimed filing by searching USCIS electronic systems or other records.

Derivative beneficiaries must be under 21 years old and unmarried at the time Form I-360 is filed to be included as derivative beneficiaries, even if they are the beneficiary of a previously filed Form I-130.^[7] If derivative beneficiaries are eligible to be included on the Form I-360 at the time of filing, then they may retain the self-petitioner’s priority date from a previously filed Form I-130.^[8]

B. Documentation Requirements

While self-petitioners submit primary evidence, where available, USCIS considers any credible evidence relevant to the self-petition.^[9] The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of USCIS.^[10]

Self-petitioners must submit evidence for each of the eligibility requirements.^[11] Documentation includes:

1. Evidence of the abusive relative’s U.S. citizenship or lawful permanent resident (LPR) status;
2. Evidence of a qualifying relationship;
3. Evidence of having entered the marriage in good faith;
4. Evidence of battery or extreme cruelty perpetrated by the U.S. citizen or LPR during the qualifying relationship (self-petitioning spouses may submit evidence of their child being subjected to battery or extreme cruelty), such as police or law enforcement reports, reports or records from medical personnel, school officials, clergy, social workers, and other social service personnel; court or medical records; or protection orders;^[12]
5. Evidence of shared residence; and
6. Evidence of good moral character if the self-petitioner is 14 years old or older, such as statements, affidavits, or local police clearance letters or state-issued criminal background check from each locality or state in or outside the United States where the self-petitioner has resided for 6 months or more during the 3-year period immediately preceding the filing of the self-petition.^[13]

The burden is on the alien to establish that he or she is eligible for the benefit sought.^[14] If the record establishes ineligibility, the benefit request is denied.^[15] However, as with any benefit request, USCIS has the authority to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) where the evidence submitted does not establish eligibility.^[16] This includes all relevant eligibility requirements, including evidence related to the claimed battery or extreme cruelty. Specifically, USCIS may issue an RFE or NOID for documents referenced in the evidence submitted. USCIS may also issue RFEs or NOIDs when the evidence submitted is vague or lacks sufficient detail to establish eligibility.

Generally, USCIS issues written notice in the form of an RFE or NOID to request additional evidence from aliens requesting benefits.^[17] However, USCIS has the discretion to deny a benefit request without issuing an RFE or NOID.^[18]

Regulations require that an RFE or NOID:

1. Be sent by regular or electronic mail;
2. Specify the type of evidence required;
3. Identify whether initial evidence or additional evidence is required; and
4. In the case of a NOID, identify the bases for the proposed denial sufficient to give the self-petitioner adequate notice and sufficient information to respond.^[19]

The RFE or NOID indicates the deadline for response. For an RFE, the maximum response period provided does not exceed twelve weeks.^[20] For a NOID, the maximum response time provided does not exceed thirty days.^[21] Further, additional time to an RFE or NOID will not be granted.^[22]

Footnotes

[^ 1] See 8 CFR 103.2(a)(1), 8 CFR 106.2(a)(16)(ii), 8 CFR 204.1(b), and 8 CFR 204.1(a)(3).

[^ 2] See 8 CFR 103.2(a)(2). See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].

[^ 3] See 8 CFR 103.2(a)(7)(ii).

[^ 4] See Fee Schedule (Form G-1055).

[^ 5] For signature requirements, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].

[^ 6] See INA 201(b) and INA 245(a). See 8 CFR 245.2(a)(2)(i).

[^ 7] See 8 CFR 204.2(c)(4).

[^ 8] See 8 CFR 204.2(c)(4).

[^ 9] See INA 204(a)(1)(J). See 8 CFR 103.2(b)(2)(iii), 8 CFR 204.1(f)(1), 8 CFR 204.2(c)(2)(i), and 8 CFR 204.2(e)(2)(i). INA 204(a)(1)(J) was not specifically amended to encompass the consideration of secondary evidence submitted by self-petitioning parents. The discussion of evidence found at 8 CFR 103.2(b)(2)(iii) and 8 CFR 204.1(f)(1) regarding self-petitions filed under INA 204(a)(1)(A)(iii) and (iv) and INA 204(a)(1)(B)(ii) and (iii) are applicable to self-petitions filed by abused parents of U.S. citizen sons or daughters under INA 204(a)(1)(A)(vii). For more information about the any credible evidence provision, see Chapter 5, Adjudication, Section B, Review of Evidence, Subsection 2, Any Credible Evidence Provision [3 USCIS-PM D.5(B)(2)].

[^ 10] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i) and 8 CFR 204.2(e)(2)(i).

[^ 11] See INA 204(a)(1). See 8 CFR 204.2(c)(1) and 8 CFR 204.2(e)(1). For more detailed information on the evidence required for each eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence [3 USCIS-PM D.2].

[^ 12] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section E, Subjected to Battery or Extreme Cruelty [3 USCIS-PM D.2(E)].

[^ 13] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section G, Good Moral Character [3 USCIS-PM D.2(G)].

[^ 14] See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966).

[^ 15] See 8 CFR 103.2(b)(8).

[^ 16] See 8 CFR 103.2(b)(8). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 17] See 8 CFR 103.2(b)(1). Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions.

[^ 18] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 19] See 8 CFR 103.2(b)(8)(iv).

[^ 20] See 8 CFR 103.2(b)(8)(iv).

[^ 21] See 8 CFR 103.2(b)(8)(iv).

[^ 22] See 8 CFR 103.2(b)(8)(iv).