3 USCIS-PM D.5
After receipting a self-petition, USCIS first determines whether the evidence submitted establishes a prima facie (“at first look”) case.[1] Self-petitioning spouses and children and any listed derivative beneficiaries may be considered “qualified aliens” eligible for certain public benefits if they can establish a prima facie case for immigrant classification or have an approved self-petition.[2]
USCIS does not make a prima faciedetermination for self-petitions filed from outside the United States. Self-petitioners who are outside the United States are not eligible for U.S. public benefits. Although USCIS issues prima facie determinations for self-petitioning parents of U.S. citizens, they are not included in the definition of “qualified aliens” in statute and are, therefore, ineligible for public benefits as “qualified aliens.”[3]
To establish a prima facie case, the self-petitioner must submit a completed Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) and evidence to support each of the eligibility requirements for the self-petition.[4] The self-petitioner must address each of the eligibility requirements, but need not prove eligibility by a preponderance of the evidence in order to establish a prima facie case unless a higher standard is specified by law.[5]
If USCIS determines that a self-petitioner has demonstrated prima facie eligibility, USCIS issues a Notice of Prima Facie Case (NPFC) to the self-petitioner.[6] The decision to issue an NPFC rests solely with USCIS.[7]
The NPFC does not confer immigration status or a benefit, and a self-petitioner may not apply solely for an NPFC. A PFC determination is a “first look” determination that the self-petitioner seems to have addressed each of the eligibility requirements. This is not a determination that the self-petitioner established eligibility or that the self-petitioner has met his or her burden of proof. USCIS’ decision to issue or not issue an NPFC is not a consideration in the adjudication of the underlying self-petition, and a prima facie determination, whether favorable or adverse, is not a final adjudication of the self-petition.
A favorable NPFC does not mean the self-petitioner has established eligibility for the underlying self-petition, and additional evidence may be required to establish such eligibility after a favorable NPFC has been issued.[8]
Self-petitioners may use the NPFC as evidence to establish their eligibility for certain public benefits and are eligible to renew their NPFC, as needed, until USCIS completes a full adjudication of the self-petition.[9] NPFCs are initially valid for 1 year. If USCIS has not made a decision on the self-petition by the time the NPFC expires, USCIS automatically sends a renewed NPFC within 60 days of the expiration date.
The NPFC is renewed for 180 days and continues to be renewed for 180-day periods until USCIS fully adjudicates the self-petition. If the Form I-360 is denied, USCIS does not re-issue or extend the NPFC. Filing an appeal of Form I-360 does not extend the validity of an existing NPFC.
The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought.[10] Generally, the standard of proof to establish eligibility for a self-petition is preponderance of the evidence.[11] Establishing eligibility by a preponderance of the evidence means that it is more likely than not that the self-petitioner qualifies for the benefit. This is a lower standard of proof than both the “clear and convincing” and “beyond a reasonable doubt” standards of proof. The burden is on self-petitioners to demonstrate their eligibility for the self-petition by a preponderance of the evidence.[12] However, see prior discussion for standards of proof regarding prior marriage fraud, marriages entered into after the self-petitioner is entered into removal proceedings, or second spousal petition for classification of the spouse of an alien under INA 204(a)(2).[13]
In determining eligibility, USCIS considers any credible evidence relevant to the petition. The determination of what evidence is credible, and the weight afforded to that evidence, is within the sole discretion of USCIS.[14] Generally, petitioners are required to submit primary evidence with a family-based immigrant visa petition or secondary or tertiary evidence if primary evidence is unavailable.[15]
Although Violence Against Women Act (VAWA) self-petitioners submit primary or secondary evidence whenever possible, USCIS considers any credible evidence a self-petitioner submits to establish eligibility.[16] Though not required, an explanation from the self-petitioner regarding the unavailability of specific documents assists officers in determining eligibility.
The burden of proof is on the self-petitioner to demonstrate eligibility for the self-petition by generally the preponderance of the evidence standard. For each eligibility requirement, self-petitioners must submit sufficient relevant, probative, and credible evidence to establish that the claim is “more likely than not” or “probably” true, unless a higher standard is required by law.
Credible evidence has been defined as “[e]vidence that is worthy of belief; trustworthy evidence.”[17] So the requirement that USCIS consider any credible evidence simply means that USCIS considers any evidence that is trustworthy or worthy of belief. Credible evidence is plausible, sufficiently detailed, and internally and externally consistent in fact. Evidence that is relevant includes specific facts that address the eligibility criteria for VAWA classification. Probative value speaks not to the quantity of evidence but instead to its quality. Evidence may be credible but lack sufficient probative value to establish the eligibility requirements. USCIS considers the probative value, relevance, and credibility of each piece of evidence on a case-by-case basis.[18]
Evidence may be found credible and acceptable, but fail to meet the self-petitioner’s burden of proof to establish each eligibility requirement. Additionally, some pieces of evidence may be credible (that is, detailed, plausible, and consistent) to establish one eligibility requirement, but fail to establish another eligibility requirement.
Insufficient credible evidence means that the self-petitioner has not provided enough credible or persuasive information to support the claim or claims he or she is making. This may sometimes appear as the self-petitioner providing evidence that is not detailed enough or is irrelevant to the burden of proving a particular fact. Self-petitioners are not required to submit any specific type of evidence.[19] In addition, a self-petition may not be denied for failure to submit a particular piece of evidence.[20] However, USCIS has the discretion to issue Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs), and may do so if the evidence submitted lacks detail, probative value, or is insufficient to establish eligibility.[21]
Determining the Weight and Credibility of Evidence
USCIS determines the weight and credibility of evidence on a case-by-case basis. Weight and credibility are legal and evidentiary concepts; they are related, but not the same. The weight of the evidence is “the persuasiveness of some evidence in comparison with other evidence.”[22] Credibility is “the quality that makes something (as a witness or some evidence) worthy of belief.”[23]
In assessing weight, USCIS may consider the relevance, probative value, and credibility of the evidence. For example, a self-petitioner may submit a personal statement identifying his or her claims, but if the claims made therein are corroborated by other forms of objective evidence, including but not limited to hospital reports, police reports, or records from a social worker or case worker, it may carry more evidentiary weight. In particular, USCIS may determine that a sworn statement that consists of conclusory statements, but which lacks sufficient factual detail, carries less evidentiary weight.
Officers must examine each piece of evidence individually and within the context of the totality of the evidence for relevance, probative value, and credibility. USCIS determines the appropriate weight to afford each piece of evidence after reviewing the record in its entirety. As part of meaningfully fulfilling USCIS’ responsibilities in these cases, officers must consider whether the evidence is credible or not when looking at the record in its entirety during the adjudicative investigation of the facts of the case that is required under INA 204(b).
For example, one piece of evidence may be inconsistent or contradictory to other elements or evidence provided as part of the self-petition. As another example, evidence that appears inconsistent with or contradictory to information contained in USCIS or DHS records, systems, or electronic databases is likely not credible on an external basis.
Where information submitted by the self-petitioner is inconsistent with objective information found in DHS systems (such as a record of travel) and that information demonstrates an inconsistency related to an eligibility requirement, USCIS may confront the self-petitioner and provide an opportunity for the self-petitioner to explain the inconsistency.[24]
The use of this information is permissible under the Privacy Act and in regard to the DHS System of Record Notice “Regarding Collection, Use, Retention, and Dissemination of Personally Identifiable Information” policy.[25] The mixed systems policy provides that the protections of the Privacy Act should be afforded to all persons (not just U.S. citizens and lawful permanent residents (LPRs)) to the maximum extent practicable.
Officers must carefully review evidence in both these regards before making a credibility determination. If an officer identifies an inconsistent or contradictory piece of evidence submitted as part of a self-petition, it may call into question the credibility of other evidence submitted with the self-petition,[26] particularly with respect to a piece of evidence that lacks detail, specificity, reliability, or that cannot be independently corroborated. Similarly, if a self-petitioner submitted a fraudulent document or knowingly made a false statement in a benefit request to USCIS, that may call into question the credibility of all other evidence submitted with the self-petition. In these hypothetical examples, both weight of evidence and credibility may be impacted by inconsistency or contradiction with other parts of the record.
The determination of what is credible will often also be a function of other elements in the case.
For example, if USCIS finds a self-petitioner’s affidavit to be inconsistent with other evidence in the record, officers could determine in their inherent discretion that the credibility or weight of the self-petitioner’s affidavit is diminished. This is even more likely to be the case where the same hypothetical self-petitioner’s affidavit was inconsistent with an official DHS record or system or with an official third-party record, such as a public record, a record of regularly conducted activity, a certified record, or an official business record.
This is not to say that a single discrepancy in any self-petitioner’s affidavit would always lead to a finding of ineligibility. Officers are instructed to use their commonsense judgement when evaluating the weight and credibility of each piece of evidence submitted with a self-petition. Discrepancies in the evidence call into question the self-petitioner’s ability to document the requirements under the statute and regulations. Doubt cast on any aspect of the evidence submitted may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.[27] It is the self-petitioner’s burden to demonstrate eligibility and to resolve any inconsistencies in the record with credible evidence.
Some general principles are applicable in making the weight and credibility determination. Officers generally give more weight to primary evidence and evidence provided in court documents, medical reports, police reports, and other official documents.[28] Self-petitioners who submit affidavits are encouraged to provide detailed, specific, and reliable affidavits from more than one person.
Any form of documentary evidence may be submitted, and the absence of a particular form or piece of evidence is not grounds for ineligibility. However, the burden of proof rests with the self-petitioner, not USCIS. Affidavits that lack a sufficient amount of detail, specificity, and reliability might not be afforded a significant amount of weight under the “any credible evidence” provision.
USCIS may issue an RFE or a NOID to notify self-petitioners of deficiencies in the self-petition and to allow them an opportunity to respond before issuing a final decision.[29]
USCIS has the authority to require an interview for any benefit request,[30] including VAWA Form I-360s. Interviews may be routine and categorical, or non-routine and isolated. USCIS has the discretion to require an interview based specifically on the facts and circumstances of a particular case. The decision to interview a particular case is not inherently derogatory. The purpose of the interview is to develop the facts or confirm information relevant to the adjudication for an immigration benefit, consistent with USCIS’ obligation under INA 204(b) to conduct an adjudicative investigation of the facts in each case.
In any case where USCIS requires an interview, USCIS notifies the self-petitioner in advance of the interview, including any attorney or representative, according to processes in accordance with all applicable USCIS policy. The notice includes the date, time, and place of the scheduled interview. USCIS schedules any interview for the self-petitioner at the USCIS field office with appropriate jurisdiction. USCIS may need to send an RFE for the self-petitioner’s physical address to determine the correct office of jurisdiction, if that address was not provided to USCIS. USCIS reserves the right to interview the self-petitioner on the Form I-360 simultaneously with a pending Application to Register Permanent Residence or Adjust Status (Form I-485),[31] where applicable. USCIS also may determine an interview is appropriate on a pending VAWA Form I-360 where the self-petitioner has not filed a Form I-485 yet.
The primary purpose of an interview is to develop the facts the officer needs for a sound adjudication under immigration laws, regulations, policies, and procedures, by:
USCIS interviews are non-adversarial.
At the end of the interview, the officer informs the self-petitioner and his or her representative of any next steps and gives them the opportunity to ask any questions. USCIS makes a copy of all identification documents and original materials when practicable (if not done at the beginning of the interview), places the copies in the A-file, and hands the originals back to the self-petitioner.
The decision to approve or deny a self-petition is not technically discretionary. However, USCIS has the sole discretion to determine appropriate weight and the amount of credibility to give evidence submitted in determining whether the eligibility requirements are met.[32] Furthermore, the self-petitioner must establish they have good moral character[33] which is evaluated on a case-by-case basis taking into account the provisions regarding good moral character in INA 101(f) and the standards of the average citizen in the community.[34] Where USCIS determines the self-petitioner satisfies all statutory and regulatory eligibility requirements, USCIS approves the self-petition. USCIS does not have the authority to deny a self-petition in the sole exercise of discretion where USCIS already determined eligibility was established.[35]
If derogatory information unrelated to eligibility for the self-petition is discovered, the officer may forward the information to an investigation unit for appropriate action. Unless the derogatory information relates to eligibility for the self-petition, however, such information cannot serve as the basis for a denial.
If USCIS determines that the information and evidence provided with the Form I-360 demonstrate eligibility, USCIS approves the self-petition.
Self-petitioning spouses, children, and parents of abusive U.S. citizens are considered immediate relatives and may seek adjustment of status or an immigrant visa immediately after approval of the self-petition, as a visa is immediately available for this category of family-based immigrants.[36] Immediate relatives in the United States also have the option to file an application for adjustment of status concurrently with the self-petition, as the visa is immediately available after the petition is approved.[37]
Self-petitioning spouses and children of abusive LPRs receive a visa number from a family-based preference category when the self-petition is approved and may file an application for adjustment of status or seek an immigrant visa when a visa is available.[38] If a self-petitioner seeks an immigrant visa from outside the United States, USCIS forwards the self-petition to the National Visa Center.[39]
An approved self-petition does not confer immigration status to self-petitioners or their derivative beneficiaries. An approved self-petition provides immigrant classification so that the self-petitioner and any derivative beneficiaries have a basis upon which they may be eligible to apply for lawful permanent resident status.
Employment Authorization
Approved self-petitioners are eligible for employment authorization.[40] USCIS may issue an Employment Authorization Document (EAD) to principal self-petitioners upon approval if they requested an EAD on the Form I-360.[41] Aliens seeking employment in the United States must present an acceptable document or combination of documents to their employer as evidence of both identity and employment authorization.[42]
Derivative beneficiaries may apply for an EAD by submitting an Application for Employment Authorization (Form I-765) and supporting documentation of the principal’s approved self-petition and of the qualifying derivative relationship. Aliens eligible for employment authorization based on an approved self-petition receive an EAD with a (c)(31) employment authorization code.
Deferred Action
Approved self-petitioners and their derivative beneficiaries may be considered for deferred action on a case-by-case basis.[43] Derivative beneficiaries requesting deferred action must include a copy of the self-petitioner’s approval notice and evidence of the qualifying derivative relationship with the request.
If USCIS finds that the facts and information provided with the Form I-360 do not demonstrate eligibility, then USCIS denies the self-petition. USCIS notifies the self-petitioner of the denial in writing and provides the reason(s) for the denial and the right to appeal the decision.[44] A denial of a self-petition does not prevent the self-petitioner from filing another self-petition.
Aliens may have previously been the beneficiary of a Petition for Alien Relative (Form I-130) and filed a Form I-485 before filing the self-petition. If the Form I-485 is pending, an alien may notify USCIS either verbally in person or in writing by mail to the local USCIS field office that he or she filed a self-petition, and request that USCIS hold adjudication of the pending Form I-485 until the Form I-360 is adjudicated and change the underlying basis of the pending Form I-485 from the Form I-130 to the self-petition.
If an alien intends to file a self-petition, he or she may notify USCIS either verbally in person or in writing by mail to the local USCIS field office of their intention to file the Form I-360 and request that USCIS hold the adjudication of the pending Form I-485. The written notification should contain the alien’s name and A-Number, a safe address where USCIS can contact him or her, and the alien’s physical address in order to schedule a future interview. The alien has 30 days from the day USCIS receives notification of the request to file the Form I-360. If the alien does not file a self-petition within 30 days of the request, USCIS continues adjudication of the Form I-485 based on the Form I-130. Officers may check USCIS electronic systems to confirm that a self-petition was filed.
When an alien notifies USCIS that he or she intends to file a self-petition or has already filed a self-petition, DHS considers the confidentiality protections at 8 U.S.C. 1367(a)(1) to apply to the self-petitioner.[45] However, if the alien does not file a self-petition, USCIS concludes the alien does not want be treated as a VAWA self-petitioner and the protections of 8 U.S.C. 1367 will not apply to the adjudication of any forms.[46]
[^ 1] See 8 CFR 204.2(e)(6).
[^ 2] See the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193 (PDF), 110 Stat. 2105 (August 22, 1996) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 (PDF), 110 Stat. 3009 (September 30, 1996), which restricted eligibility for public assistance to “qualified aliens.”
[^ 3] See Pub. L. 104-193 (PDF), 110 Stat. 2105 (August 22, 1996).
[^ 4] See 8 CFR 204.2(c)(6)(ii) and 8 CFR 204.2(e)(6)(ii). For more information, see Chapter 2, Eligibility Requirements and Evidence [3 USCIS-PM D.2].
[^ 5] See 8 CFR 204.2(c)(6)(ii) and 8 CFR 204.2(e)(6)(ii).
[^ 6] See 8 CFR 204.2(c)(6)(iii) and 8 CFR 204.2(e)(6)(iii).
[^ 7] See 62 FR 60769, 60770 (PDF) (November 13, 1997).
[^ 8] See 8 CFR 204.2(c)(6)(ii) and 8 CFR 204.2(e)(6)(ii).
[^ 9] See 8 CFR 204.2(c)(6)(iii) and 8 CFR 204.2(e)(6)(iii).
[^ 10] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 11] See Matter of Chawathe (PDF) 25 I&N Dec. 369 (AAO 2010); Matter of Martinez (PDF), 21 I&N Dec. 1035, 1036 (BIA 1997); and Matter of Soo Hoo (PDF), 11 I&N Dec 151 (BIA 1965). Note that in certain circumstances, the self-petitioner may be required to satisfy a higher standard of proof. See Chapter 3, Effect of Certain Life Events, Section B, Self-Petitioner’s Marriage or Remarriage [3 USCIS-PM D.3(B)].
[^ 12] See INA 291. See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966).
[^ 13] See Chapter 3, Effect of Certain Life Events, Section C, Marriage-Related Prohibitions on Self-Petition Approval [3 USCIS-PM D.3(C)].
[^ 14] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i) and 8 CFR 204.2(e)(2)(i).
[^ 15] See 8 CFR 204.1(f).
[^ 16] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i) and 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (PDF) (March 26, 1996).
[^ 17] See Black’s Law Dictionary (12th ed. 2024).
[^ 18] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010).
[^ 19] See 8 CFR 103.2(b)(2)(iii).
[^ 20] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i) and 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (March 26, 1996).
[^ 21] See 8 CFR 103.2(b)(8)(iii).
[^ 22] See Black’s Law Dictionary (12th ed. 2024).
[^ 23] See Black’s Law Dictionary (12th ed. 2024).
[^ 24] See 8 CFR 103.2(b)(16)(i).
[^ 25] See DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Personally Identifiable Information (PDF), DHS Directive 262-16, signed and issued on May 4, 2022.
[^ 26] See Matter of Ho (PDF), 19 I&N Dec. 582 (BIA 1988) (“Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.”).
[^ 27] See Matter of Ho (PDF), 19 I&N Dec. 582 (BIA 1988).
[^ 28] See 61 FR 13061, 13068 (PDF) (March 26, 1996).
[^ 29] See 8 CFR 103.2(b)(8).
[^ 30] See 8 CFR 103.2(b)(9) (“USCIS may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request, or any group or class of such persons submitting requests, to appear for an interview and/or biometric collection.”).
[^ 31] Regulations require USCIS interview every applicant for adjustment of status (pending Form I-485) who is over the age of 14 years old and who is clearly not ineligible under INA 245(c), unless USCIS waives it on a case-by-case basis. See 8 CFR 245.6.
[^ 32] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i), 8 CFR 103.2(b)(2)(iii), and 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (PDF) (March 26, 1996).
[^ 33] See INA 204(a)(1)(A)(iii)(II)(bb), INA 204(a)(1)(A)(iv), INA 204(a)(1)(A)(vii)(II), INA 204(a)(1)(B)(ii)(II)(bb), and INA 204(a)(1)(B)(iii). See 8 CFR 204.2(c)(1)(i)(F) and 8 CFR 204.2(e)(1)(i)(F).
[^ 34] See 8 CFR 204.2(c)(1)(vii), 8 CFR 204.2(e)(1)(vii), and 8 CFR 316.10(a)(2).
[^ 35] See INA 204(b).
[^ 36] See INA 201(b) and INA 245(a). See 8 CFR 245.2(a)(2)(i) and 8 CFR 245.1(g).
[^ 37] See 8 CFR 245.2(a)(2)(i)(B)-(C).
[^ 38] See INA 203(a) and INA 245(a). See 8 CFR 245.2(a)(2)(i) and 8 CFR 245.1(g). Visa availability depends on several factors, including the self-petitioner’s immigrant classification. Information on visa availability and priority dates is available at the Adjustment of Status Filing Charts from the Visa Bulletin web page. For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
[^ 39] See 8 CFR 204.2(c)(3)(i) and 8 CFR 204.2(e)(3)(i).
[^ 40] See INA 204(a)(1)(K), INA 204(a)(1)(D)(i)(II), and INA 204(a)(1)(D)(i)(IV).
[^ 41] See INA 204(a)(1)(K). See the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).
[^ 42] See 8 CFR 274a.2. See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section B, Determining Ongoing Eligibility [7 USCIS-PM A.6(B)].
[^ 43] See INA 103(a), INA 204(a)(1)(D)(i)(II), and INA 204(a)(1)(D)(i)(IV). See Heckler v. Chaney, 470 U.S. 821, 831 (1985). Note that deferred action does not permit a person to re-enter the United States lawfully without prior approval if the person were to depart the country.
[^ 44] See 8 CFR 204.2(c)(3)(ii), 8 CFR 204.2(e)(3)(ii), and 8 CFR 103.3(a).
[^ 45] See 8 U.S.C. 1367. See Implementation of Section 1367 Information Provisions (PDF), DHS Instruction 002-02-001, Revision 00.1, issued November 7, 2013. For more information, see Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)].