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New USCIS Policy Memos Implement VAWA 2005 Self-Petitioning Amendments

By Susan Schreiber

VAWA 2005, signed into law in January 2006, extended self-petitioning eligibility to (a) abused parents of adult U.S. citizens, and (b) abused sons and daughters of U.S. citizens and lawful permanent residents over age 21 and under 25, who may apply as self-petitioning children if the abuse was a central reason for the delay in filing.   Recent policy memoranda issued by USCIS provides new guidance on eligibility to self-petition in each of these categories

Self-Petitioning As an Abused Child after Attaining Age 21. The USCIS guidance, issued on September 6, 2011, provides that an eligible self-petitioner in this category must show that she or he was qualified to file the self-petition on the day before attaining age 21.  This means, for example, that the qualifying battery or extreme cruelty must have occurred before the applicant turned 21.  Citing INA § 204(a)(1)(D)(v), the guidance also requires that the self-petition be filed before the applicant’s 25th birthday, along with supporting documentation.

On the critical issue of establishing that abuse was “one central reason for the delay in filing,” the USCIS memorandum describes a central reason as one that is caused by or incident to the battery of extreme cruelty experienced by the applicant.  In other words, the applicant must establish a connection between the battery or extreme cruelty and the delay in filing.  Examples in the guidance include situations where: (1) the self-petitioner is subjected to abuse close in time to turning 21, so that there is insufficient time to submit an application before attaining age 21, and (2) the self-petitioner is so traumatized by abuse that she or he is unable to apply before turning 21.  The guidance notes that the adjudicating officer must evaluate each application on a case-by-case basis, and consider the totality of circumstances, including any credible evidence that the qualifying abuse was one central reason for the delay in filing.

The memo concludes that self-petitioners in this category must be unmarried because the applicants will be treated as self-petitioning children of U.S. citizens under INA § 204(a)(1)(A)(iv) or self-petitioning children of lawful permanent residents under § 204(a)(1)(B)(iii).  Applications filed by self-petitioners who are married at the time of filing or at the time of petition adjudication will be denied. However, if the self-petitioner marries after filing, the petition may be approved if the marriage is terminated before the petition is adjudicated.

Approved self-petitioners in this category are treated as if the self-petition was filed on the day before the applicant turned 21.  For Child Status Protection Act (CSPA) purposes, this should mean that a self-petitioning son or daughter of a U.S. citizen will be considered an immediate relative child who does not age-out of this category.  Self-petitioning sons and daughters of lawful permanent residents are classified in the F-2A category, and will have to do an adjusted age calculation once the priority date is current to determine if the CSPA will allow them to remain in that category.  If not, as the guidance notes, INA § 204(a)(1)(D)(i) would allow the aged-out self-petitioner to convert to the appropriate category, which in this situation would be the F-2B classification.

Example: Cora, who turned 21 on January 15, 2008, filed a self-petition as the abused child of an LPR on July 30, 2010.  She established that abuse was a central reason for the delay in filing and the petition is approved on February 14, 2011.  Under the guidance, Cora’s petition is adjudicated as if she filed on January 14, 2008.  Since the priority date is current, Cora will determine if she qualifies to remain in the F2A category under CSPA by subtracting from her chronological age the amount of time between the filing of the petition (January 14, 2008) and the date the petition was approved (February 14, 2011).  In this case, that will allow Cora to subtract 3 years and one month from her actual age.

The F-2A priority date in Cora’s case became current on July 1, 2011, when Cora was 24 years, 5 months and two weeks old.  With the adjusted age calculation that subtracts 3 years and two months from Cora’s actual age, Cora’s adjusted age is still over 21 and she will convert to the F-2B category to wait for a current priority date.

Eligibility to Self-Petition as the Abused Parent of an Adult U.S. Citizen.  The August 30, 2011 USCIS memoranda addressing this VAWA 2005 self-petitioner category begins by clarifying that qualifying parent/child relationships include stepparents and adoptive parents of U.S. citizens.  In the case of a stepparent, the applicant must establish that the marriage creating the stepparent relationship took place before the U.S. citizen stepchild turned 18. If the step-relationship is no longer in legal existence at the time of filing, due to death, legal separation or divorce, the self-petitioning stepparent remains eligible only if she or he can show that the relationship between the stepparent and stepchild continues to exist at the time of filing.  Similarly, adoptive self-petitioning parents must show that the qualifying adoptive relationship was created when the U.S. citizen child was under age 16, and otherwise meets the requirements for an adoptive parent/child relationship under INA § 101(b)(1)(E), (F), or (G).

The CIS guidance reviews the basic eligibility requirements for self-petitioners in this category, which parallel the requirements for self-petitioning spouses and children.   Specifically, the abused parent must show that he or she:

  • Possesses the requisite qualifying relationship to a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed.   A qualifying self-petition may be  filed by the parent of a U.S citizen who  was at least 21 years old and died within two years prior to filing the petition.  An abused parent may also self-petition within two years of the loss or renunciation of citizenship of a former U.S. citizen son or daughter, where the loss of citizenship is a result of an incident of domestic violence and the U.S. citizen was at least 21 years of age at the time of the loss of status;
  • Is a person of good moral character;
  • Resides with or previously resided with the abusive U.S. citizen son or daughter; and
  • Has been subjected to battery or extreme cruelty by the U.S. citizen son or daughter.

 

The self-petitioner must submit evidence to satisfy each of these eligibility requirements, and the guidance gives examples of potential documents to submit for each of these eligibility requirements.  As the USCIS memo notes, secondary evidence may be submitted by self-petitioning parents as appropriate to establish these requirements; adjudicators must consider all relevant credible evidence.  As is the case for other VAWA self-petitioners, abused self-petitioning parents do not need to be living in the United States at the time of filing.

The USCIS will not issue prima facie determinations to self-petitioning parents because they are not a recognized as ‘qualified aliens’ for public benefits purposes.   Self-petitioning parents are also not eligible to confer derivative benefits; listing a derivative beneficiary will not result in denial of the petition but a listed derivative is not eligible for any benefits.

For More Information.  Both agency memos can be accessed on the USCIS website by following the homepage link to “Laws” and then using the link to policy memoranda, listed both by date and topic, The guidance will also be integrated in the Adjudicator Field Manual at Chapter 21.14(a) (on self-petitioning as an abused child over age 21) and at Chapter 21.15 (on self-petitioning parents).  Note that the current Form I-360 and instructions do not reflect these new developments.  In particular, a self-petitioning parent will need to write in this category on the 360 form, because it is not currently listed.