The Immigration and Naturalization Service has issued an interim rule to enable the INS to review Forms I-360 filed battered spouse or child to determine if a basic case has been established for classification under the Violence Against Women Act.
Normally, in order to qualify for permanent residency, a spouse of a US citizen must have the spouse petition for him or her. In 1994, Congress addressed the problem of battered and abused spouses who were unable to pursue permanent residency because the process was under the control of the batterer. The Violence Against Women Act contained provisions allowing battered spouses and children to self-petition for immigrant status. In March 1996, the INS issued an interim rule setting out the eligibility requirements to apply under the Violence Against Women Act.
Under the new welfare reform laws, battered spouses and children remain eligible for benefits. Such individuals are allowed to retain such benefits if they establish a “prima facie” case for an immigrant visa even if they only have a self-petition pending. The new regulation states that an approved I-360 form is enough to qualify for welfare benefits. The new regulation also states that even if not enough evidence is submitted to approve the petition initially, the INS can still determine eligibility for welfare benefits without a final approval on the Form I-360. The new rule sets out the standards for the INS to determine that such a prima facie case has been met.
Under the new rules, applicants must submit the following evidence:
- existence of qualifying relationship
- the citizenship or immigration status of the abuser
- the self-petitioner’s eligibility for immigrant classification
- residence in the US
- evidence that, during the qualifying relationship, the petitioner and abuser resided together in the US for some period of time
- battery or extreme cruelty
- good moral character
- extreme hardship
- for spouses, evidence of a good faith marriage
If the applicant is unable to submit all of the documents at the beginning necessary to get an I-360 approval (such as a police clearance), the applicant can submit an affidavit stating that the requirement is met in the case. This will be enough for the prima facie test, though the evidentiary proof must still be submitted before the I-360 will be approved.
If the INS determines prima facie eligibility, a Notice of Prima Facie Case will be issued. The fact that an INS does not issue a Notice of Prima Facie Case will not preclude their approval of an I-360 case.
The new regulations can be found at 62 Federal Register 60760.
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