Chapter 4 - Filing Requirements

A. Filing Requirements and Initial Review

A noncitizen 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 is:

• Submitted on the current edition of the form;

• Filed at the correct filing location; and

• Properly signed.^[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]

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 always immediately available for immediate relatives.^[5]

If, however, the self-petitioner is a spouse or child of a lawful permanent resident (LPR) and seeking to adjust under a family-based preference category, the self-petitioner may need to wait for a visa to become available before filing a Form I-485.^[6]

If a visa is immediately available, the self-petitioner may file the Form I-485:

• Together (or “concurrently”) with the Form I-360;

• While the Form I-360 is pending; or

• After the Form I-360 is approved (and remains valid).^[7]

1. Priority Dates

The priority date is the date the self-petition is properly filed and is used in conjunction with the Department of State Visa Bulletin to determine whether an immigrant visa is immediately available. For purposes of visa availability, a self-petitioner’s priority date is generally the date the self-petition was filed.

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.^[8] 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.^[9]

Note that 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 had a previously filed Form I-130 filed for them.^[10] 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.^[11]

B. Documentation Requirements

Self-petitioners must file Form I-360 and submit documentation in accordance with the Form I-360 instructions to establish, by a preponderance of the evidence, that they meet the eligibility requirements.^[12]

While self-petitioners are encouraged to submit primary evidence, where available, USCIS must consider any credible evidence relevant to the self-petition.^[13] The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of USCIS.^[14]

Self-petitioners must submit evidence for each of the eligibility requirements.^[15] Documentation should include:

• Evidence of the abusive relative’s U.S. citizenship or LPR status, such as a birth certificate, an unexpired U.S. passport, a Certificate of Naturalization, or a copy of a Permanent Resident Card (Form I-551);^[16]

• Evidence of a qualifying relationship that demonstrates a familial, legal relationship to the abuser, such as birth certificates, marriage certificates, and divorce decrees;^[17]

• Evidence of having entered the marriage in good faith (for self-petitioning spouses only), such as insurance policies showing one spouse has been listed as the other spouse’s beneficiary; joint property leases, income tax forms, or accounts; or evidence of courtship, a wedding ceremony, shared residence, and other shared experiences;^[18]

• 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 reports and affidavits from police, judges, other court officials, medical personnel, school officials, clergy, social workers, and other social service personnel; court or medical records; or protection orders;^[19]

• Evidence of shared residence with the abusive U.S. citizen or LPR, such as leases, deeds, mortgages, or rental agreements listing the abuser and the self-petitioner; utility invoices, bank statements, or financial documents listing a common address; school records listing the parent and address of record; medical records; or income tax filings; and ^[20]

• Evidence of good moral character if the self-petitioner is 14 years old or older, such as affidavits and a local police clearance 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.^[21]

Footnotes

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

[^ 5] See INA 201(b). See INA 245(a). See 8 CFR 245.2(a)(2)(i).

[^ 6] For information on visa availability, see Visa Availability and Priority Dates, Adjustment of Status Filing Charts, and the Department of State website to view the Visa Bulletin. 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)].

[^ 7] See 8 CFR 245.2(a)(2)(i).

[^ 8] See 8 CFR 204.2(h)(2). See 61 FR 13061, 13069 (PDF) (Mar. 26, 1996). For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 3, Priority Dates [7 USCIS-PM A.6(C)(3)].

[^ 9] See 61 FR 13061, 13069 (PDF) (Mar. 26, 1996).

[^ 10] See 8 CFR 204.2(c)(4).

[^ 11] See 8 CFR 204.2(c)(4).

[^ 12] See INA 204(a). See 8 CFR 204.2(c)(1). See 8 CFR 204.2(e)(1). Although 8 CFR 204.2(c)(1) and 8 CFR 204.2(e)(1) require self-petitioners to demonstrate extreme hardship to themselves or their children if deported; that they reside in the United States at the time of filing; and that their shared residence with the abuser take place in the United States, the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000) removed these as eligibility requirements and supersedes this part of the regulation.  

[^ 13] See INA 204(a)(1)(J). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.1(f)(1). See 8 CFR 204.2(c)(2)(i). See 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)].

[^ 14] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i).

[^ 15] See INA 204(a)(1). See 8 CFR 204.2(c)(1). See 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].

[^ 16] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section B, Qualifying Relationship, Section 1, Abuser’s U.S. Citizenship or Lawful Permanent Resident Status [3 USCIS-PM D.2(B)(1)].

[^ 17] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section B, Qualifying Relationship [3 USCIS-PM D.2(B)].

[^ 18] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section C, Good Faith Marriage (Self-Petitioning Spouses Only) [3 USCIS-PM D.2(C)].

[^ 19] 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)].

[^ 20] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section F, Residence with the Abusive Relative [3 USCIS-PM D.2(F)].

[^ 21] 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)].