Department of Homeland Security 204.2

Department of Homeland Security § 204.
and place of birth in the United States be adjudicated based on the informa-
and the date of baptism; tion submitted by the self-petitioner.
(ii) Affidavits sworn to by persons [57 FR 41056, Sept. 9, 1992, as amended at 58
who were living at the time and who FR 48778, Sept. 20, 1993; 61 FR 13072, 13073,
have personal knowledge of the event Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998; 72 FR
to which they attest. The affidavits 19106, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007; 74
must contain the affiant’s full name FR 26936, June 5, 2009; 76 FR 28305, May 17,
2011]
and address, date and place of birth, re-
lationship to the parties, if any, and § 204.2 Petitions for relatives, widows
complete details concerning how the and widowers, and abused spouses
affiant acquired knowledge of the and children.
event; (a) Petition for a spouse—(1) Eligibility.
(iii) Early school records (preferably A United States citizen or alien admit-
from the first school) showing the date ted for lawful permanent residence
of admission to the school, the child’s may file a petition on behalf of a
date and place of birth, and the spouse.
name(s) and place(s) of birth of the par- (i) Marriage within five years of peti-
ent(s); tioner’s obtaining lawful permanent resi-
(iv) Census records showing the dent status. (A) A visa petition filed on
behalf of an alien by a lawful perma-
name, place of birth, and date of birth
nent resident spouse may not be ap-
or age of the petitioner; or
proved if the marriage occurred within
(v) If it is determined that it would five years of the petitioner being ac-
cause unusual delay or hardship to ob- corded the status of lawful permanent
tain documentary proof of birth in the resident based upon a prior marriage to
United States, a United States citizen a United States citizen or alien law-
petitioner who is a member of the fully admitted for permanent resi-
Armed Forces of the United States and dence, unless:
who is serving outside the United (1) The petitioner establishes by clear
States may submit a statement from and convincing evidence that the mar-
the appropriate authority of the Armed riage through which the petitioner
Forces. The statement should attest to gained permanent residence was not
the fact that the personnel records of entered into for the purposes of evad-
the Armed Forces show that the peti- ing the immigration laws; or
tioner was born in the United States on (2) The marriage through which the
a certain date. petitioner obtained permanent resi-
dence was terminated through death.
(3) Evidence submitted with a self-peti-
(B) Documentation. The petitioner
tion. If a self-petitioner filing under
should submit documents which cover
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), the period of the prior marriage. The
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the types of documents which may estab-
Act is unable to present primary or lish that the prior marriage was not
secondary evidence of the abuser’s sta- entered into for the purpose of evading
tus, the Service will attempt to elec- the immigration laws include, but are
tronically verify the abuser’s citizen- not limited to:
ship or immigration status from infor- (1) Documentation showing joint
mation contained in Service computer- ownership of property;
ized records. Other Service records may (2) A lease showing joint tenancy of a
also be reviewed at the discretion of common residence;
the adjudicating officer. If the Service (3) Documentation showing commin-
is unable to identify a record as relat- gling of financial resources;
ing to the abuser or the record does not (4) Birth certificate(s) of child(ren)
establish the abuser’s immigration or born to the petitioner and prior spouse;
citizenship status, the self-petition will (5) Affidavits sworn to or affirmed by
third parties having personal knowl-
edge of the bona fides of the prior mar-
Rmajette on DSK2VPTVN1PROD with CFR
ital relationship. (Each affidavit must

contain the full name and address, date
and place of birth of the person making
59
VerDate Sep<11>2014 12:10 Apr 23, 2015 Jkt 235027 PO 00000 Frm 00069 Fmt 8010 Sfmt 8010 Y:\SGML\235027.XXX 235027
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
the affidavit; his or her relationship, if or conspiracy must be contained in the

any, to the petitioner, beneficiary or alien’s file.
prior spouse; and complete information (iii) Marriage during proceedings—gen-
and details explaining how the person eral prohibition against approval of visa
acquired his or her knowledge of the petition. A visa petition filed on behalf
prior marriage. The affiant may be re- of an alien by a United States citizen
quired to testify before an immigration or a lawful permanent resident spouse
officer about the information con- shall not be approved if the marriage
tained in the affidavit. Affidavits creating the relationship occurred on
should be supported, if possible, by one or after November 10, 1986, and while
or more types of documentary evidence the alien was in exclusion, deportation,
listed in this paragraph.); or or removal proceedings, or judicial pro-
(6) Any other documentation which is ceedings relating thereto. Determina-
relevant to establish that the prior tion of commencement and termi-
marriage was not entered into in order nation of proceedings and exemptions
to evade the immigration laws of the shall be in accordance with § 245.1(c)(9)
United States. of this chapter, except that the burden
in visa petition proceedings to estab-
(C) The petitioner must establish by
lish eligibility for the exemption in
clear and convincing evidence that the
§ 245.1(c)(9)(iii)(F) of this chapter shall
prior marriage was not entered into for
rest with the petitioner.
the purpose of evading the immigration
(A) Request for exemption. No applica-
laws. Failure to meet the ‘‘clear and
tion or fee is required to request an ex-
convincing evidence’’ standard will re-
emption. The request must be made in
sult in the denial of the petition. Such
writing and submitted with the Form
a denial shall be without prejudice to
I–130. The request must state the rea-
the filing of a new petition once the pe- son for seeking the exemption and
titioner has acquired five years of law- must be supported by documentary evi-
ful permanent residence. The director dence establishing eligibility for the
may choose to initiate deportation pro- exemption.
ceedings based upon information (B) Evidence to establish eligibility for
gained through the adjudication of the the bona fide marriage exemption. The
petition; however, failure to initiate petitioner should submit documents
such proceedings shall not establish which establish that the marriage was
that the petitioner’s prior marriage entered into in good faith and not en-
was not entered into for the purpose of tered into for the purpose of procuring
evading the immigration laws. Unless the alien’s entry as an immigrant. The
the petition is approved, the bene- types of documents the petitioner may
ficiary shall not be accorded a filing submit include, but are not limited to:
date within the meaning of section (1) Documentation showing joint
203(c) of the Act based upon any spous- ownership of property;
al second preference petition. (2) Lease showing joint tenancy of a
(ii) Fraudulent marriage prohibition. common residence;
Section 204(c) of the Act prohibits the (3) Documentation showing commin-
approval of a visa petition filed on be- gling of financial resources;
half of an alien who has attempted or (4) Birth certificate(s) of child(ren)
conspired to enter into a marriage for born to the petitioner and beneficiary;
the purpose of evading the immigration (5) Affidavits of third parties having
laws. The director will deny a petition knowledge of the bona fides of the mar-
for immigrant visa classification filed ital relationship (Such persons may be
on behalf of any alien for whom there required to testify before an immigra-
is substantial and probative evidence of tion officer as to the information con-
such an attempt or conspiracy, regard- tained in the affidavit. Affidavits must
less of whether that alien received a be sworn to or affirmed by people who
benefit through the attempt or con- have personal knowledge of the marital
spiracy. Although it is not necessary relationship. Each affidavit must con-
that the alien have been convicted of, tain the full name and address, date
or even prosecuted for, the attempt or and place of birth of the person making
conspiracy, the evidence of the attempt the affidavit and his or her relationship
60
Department of Homeland Security § 204.2
to the spouses, if any. The affidavit 203(c) of the Act based upon any rel-
must contain complete information ative petition filed during the prohib-
and details explaining how the person ited period, unless an exemption con-
acquired his or her knowledge of the tained in this part has been granted.
marriage. Affidavits should be sup- Furthermore, a preference beneficiary
ported, if possible, by one or more shall not be accorded a priority date
types of documentary evidence listed prior to November 29, 1990, based upon
in this paragraph); or the approval of a request for consider-
(6) Any other documentation which is ation for the bona fide marriage ex-
relevant to establish that the marriage emption contained in this part.
was not entered into in order to evade
(2) Evidence for petition for a spouse. In
the immigration laws of the United
addition to evidence of United States
States.
(C) Decision. Any petition filed during citizenship or lawful permanent resi-
the prohibited period shall be denied, dence, the petitioner must also provide
unless the petitioner establishes eligi- evidence of the claimed relationship. A
bility for an exemption from the gen- petition submitted on behalf of a
eral prohibition. The petitioner shall spouse must be accompanied by a re-
be notified in writing of the decision of cent ADIT-style photograph of the pe-
the director. titioner, a recent ADIT-style photo-
(D) Denials. The denial of a petition graph of the beneficiary, a certificate
because the marriage took place during of marriage issued by civil authorities,
the prohibited period shall be without and proof of the legal termination of
prejudice to the filing of a new petition all previous marriages of both the peti-
after the beneficiary has resided out- tioner and the beneficiary. However,
side the United States for the required non-ADIT-style photographs may be
period of two years following the mar- accepted by the district director when
riage. The denial shall also be without the petitioner or beneficiary reside(s)
prejudice to the consideration of a new in a country where such photographs
petition or a motion to reopen the visa are unavailable or cost prohibitive.
petition proceedings if deportation or (3) Decision on and disposition of peti-
exclusion proceedings are terminated tion. The approved petition will be for-
after the denial other than by the bene-
warded to the Department of State’s
ficiary’s departure from the United
Processing Center. If the beneficiary is
States. Furthermore, the denial shall
in the United States and is eligible for
be without prejudice to the consider-
ation of a new petition or motion to re- adjustment of status under section 245
open the visa petition proceedings, if of the Act, the approved petition will
the petitioner establishes eligibility be retained by the Service. If the peti-
for the bona fide marriage exemption tion is denied, the petitioner will be
contained in this part: Provided, That notified of the reasons for the denial
no motion to reopen visa petition pro- and of the right to appeal in accord-
ceedings may be accepted if the ap- ance with the provisions of 8 CFR 3.3.
proval of the motion would result in (4) Derivative beneficiaries. No alien
the beneficiary being accorded a pri- may be classified as an immediate rel-
ority date within the meaning of sec- ative as defined in section 201(b) of the
tion 203(c) of the Act earlier than No- Act unless he or she is the direct bene-
vember 29, 1990. ficiary of an approved petition for that
(E) Appeals. The decision of the Board classification. Therefore, a child of an
of Immigration Appeals concerning the alien approved for classification as an
denial of a relative visa petition be- immediate relative spouse is not eligi-
cause the petitioner failed to establish ble for derivative classification and
eligibility for the bona fide marriage must have a separate petition filed on
exemption contained in this part will his or her behalf. A child accom-
constitute the single level of appellate panying or following to join a principal
review established by statute.
alien under section 203(a)(2) of the Act

(F) Priority date. A preference bene-
may be included in the principal alien’s
ficiary shall not be accorded a priority
date within the meaning of section second preference visa petition. The
61
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
child will be accorded second pref- her document is unavailable, a letter

erence classification and the same pri- from the appropriate registrar stating
ority date as the principal alien. How- that the document is not available will
ever, if the child reaches the age of be required before the Service will ac-
twenty-one prior to the issuance of a cept secondary evidence. Secondary
visa to the principal alien parent, a evidence will be evaluated for its au-
separate petition will be required. In thenticity and credibility. Secondary
such a case, the original priority date evidence may include:
will be retained if the subsequent peti- (i) Such evidence of the marriage and
tion is filed by the same petitioner. termination of prior marriages as reli-
Such retention of priority date will be gious documents, tribal records, census
accorded only to a son or daughter pre- records, or affidavits; and
viously eligible as a derivative bene- (ii) Such evidence of the United
ficiary under a second preference States citizen’s death as religious doc-
spousal petition. uments, funeral service records, obitu-
(b) Petition by widow or widower of a aries, or affidavits. Affidavits sub-
United States citizen—(1) Eligibility. A mitted as secondary evidence pursuant
widow or widower of a United States to paragraphs (b)(2)(i) and (b)(2)(ii) of
citizen may file a petition and be clas- this section must be sworn to or af-
sified as an immediate relative under firmed by people who have personal
section 201(b) of the Act if: knowledge of the event to which they
(i) He or she had been married for at attest. Each affidavit should contain
least two years to a United States cit- the full name and address, date and
izen. place of birth of the person making the
(NOTE: The United States citizen is not re- affidavit and his or her relationship, if
quired to have had the status of United any, to the widow or widower. Any
States citizen for the entire two year period, such affidavit must contain complete
but must have been a United States citizen information and details explaining how
at the time of death.) knowledge of the event was acquired.
(ii) The petition is filed within two (3) Decision on and disposition of peti-
years of the death of the citizen spouse tion. The approved petition will be for-
or before November 29, 1992, if the cit- warded to the Department of State’s
izen spouse died before November 29, Processing Center. If the widow or wid-
1990; ower is in the United States and is eli-
(iii) The alien petitioner and the cit- gible for adjustment of status under
izen spouse were not legally separated section 245 of the Act, the approved pe-
at the time of the citizen’s death; and tition will be retained by the Service.
(iv) The alien spouse has not remar- If the petition is denied, the widow or
ried. widower will be notified of the reasons
(2) Evidence for petition of widow or for the denial and of the right to appeal
widower. If a petition is submitted by in accordance with the provisions of 8
the widow or widower of a deceased CFR 3.3.
United States citizen, it must be ac- (4) Derivative beneficiaries. A child of
companied by evidence of citizenship of an alien widow or widower classified as
the United States citizen and primary an immediate relative is eligible for de-
evidence, if available, of the relation- rivative classification as an immediate
ship in the form of a marriage certifi- relative. Such a child may be included
cate issued by civil authorities, proof in the principal alien’s immediate rel-
of the termination of all prior mar- ative visa petition, and may accom-
riages of both husband and wife, and pany or follow to join the principal
the United States citizen’s death cer- alien to the United States. Derivative
tificate issued by civil authorities. To benefits do not extend to an unmarried
determine the availability of primary or married son or daughter of an alien
documents, the Service will refer to widow or widower.
the Department of State’s Foreign Af- (c) Self-petition by spouse of abusive
fairs Manual (FAM). When the FAM citizen or lawful permanent resident—(1)
shows that primary documents are gen- Eligibility—(i) Basic eligibility require-
erally available in the country at issue ments. A spouse may file a self-petition
but the petitioner claims that his or under section 204(a)(1)(A)(iii) or
62
204(a)(1)(B)(ii) of the Act for his or her relative status. The self-petitioner
classification as an immediate relative would not be precluded, however, from
or as a preference immigrant if he or filing a new self-petition for immediate
she: relative classification after the abus-
(A) Is the spouse of a citizen or law- er’s naturalization, provided the self-
ful permanent resident of the United petitioner continues to meet the self-
States; petitioning requirements.
(B) Is eligible for immigrant classi- (iv) Eligibility for immigrant classifica-
fication under section 201(b)(2)(A)(i) or tion. A self-petitioner is required to
203(a)(2)(A) of the Act based on that re- comply with the provisions of section
lationship; 204(c) of the Act, section 204(g) of the
(C) Is residing in the United States; Act, and section 204(a)(2) of the Act.
(D) Has resided in the United States (v) Residence. A self-petition will not
with the citizen or lawful permanent be approved if the self-petitioner is not
resident spouse; residing in the United States when the
(E) Has been battered by, or has been self-petition is filed. The self-petitioner
the subject of extreme cruelty per- is not required to be living with the
petrated by, the citizen or lawful per- abuser when the petition is filed, but
manent resident during the marriage; he or she must have resided with the
or is that parent of a child who has abuser in the United States in the past.
been battered by, or has been the sub- (vi) Battery or extreme cruelty. For the
ject of extreme cruelty perpetrated by, purpose of this chapter, the phrase
the citizen or lawful permanent resi- ‘‘was battered by or was the subject of
dent during the marriage; extreme cruelty’’ includes, but is not
(F) Is a person of good moral char- limited to, being the victim of any act
acter; or threatened act of violence, including
(G) Is a person whose deportation any forceful detention, which results or
would result in extreme hardship to threatens to result in physical or men-
himself, herself, or his or her child; and tal injury. Psychological or sexual
(H) Entered into the marriage to the abuse or exploitation, including rape,
citizen or lawful permanent resident in molestation, incest (if the victim is a
good faith. minor), or forced prostitution shall be
(ii) Legal status of the marriage. The considered acts of violence. Other abu-
self-petitioning spouse must be legally sive actions may also be acts of vio-
married to the abuser when the peti- lence under certain circumstances, in-
tion is properly filed with the Service. cluding acts that, in and of themselves,
A spousal self-petition must be denied may not initially appear violent but
if the marriage to the abuser legally that are a part of an overall pattern of
ended through annulment, death, or di- violence. The qualifying abuse must
vorce before that time. After the self- have been committed by the citizen or
petition has been properly filed, the lawful permanent resident spouse,
legal termination of the marriage will must have been perpetrated against the
have no effect on the decision made on self-petitioner or the self-petitioner’s
the self-petition. The self-petitioner’s child, and must have taken place dur-
remarriage, however, will be a basis for ing the self-petitioner’s marriage to
the denial of a pending self-petition. the abuser.
(iii) Citizenship or immigration status (vii) Good moral character. A self-peti-
of the abuser. The abusive spouse must tioner will be found to lack good moral
be a citizen of the United States or a character if he or she is a person de-
lawful permanent resident of the scribed in section 101(f) of the Act. Ex-
United States when the petition is filed tenuating circumstances may be taken
and when it is approved. Changes in the into account if the person has not been
abuser’s citizenship or lawful perma- convicted of an offense or offenses but
nent resident status after the approval admits to the commission of an act or
will have no effect on the self-petition. acts that could show a lack of good
A self-petition approved on the basis of moral character under section 101(f) of
a relationship to an abusive lawful per- the Act. A person who was subjected to
manent resident spouse will not be abuse in the form of forced prostitution
automatically upgraded to immediate or who can establish that he or she was
63
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
forced to engage in other behavior that purpose of circumventing the immigra-

could render the person excludable tion laws. A self-petition will not be
under section 212(a) of the Act would denied, however, solely because the
not be precluded from being found to be spouses are not living together and the
a person of good moral character, pro- marriage is no longer viable.
vided the person has not been con- (2) Evidence for a spousal self-petition—
victed for the commission of the of- (i) General. Self-petitioners are encour-
fense or offenses in a court of law. A aged to submit primary evidence when-
self-petitioner will also be found to ever possible. The Service will con-
lack good moral character, unless he or sider, however, any credible evidence
she establishes extenuating cir- relevant to the petition. The deter-
cumstances, if he or she willfully failed mination of what evidence is credible
or refused to support dependents; or and the weight to be given that evi-
committed unlawful acts that ad- dence shall be within the sole discre-
versely reflect upon his or her moral tion of the Service.
character, or was convicted or impris- (ii) Relationship. A self-petition filed
oned for such acts, although the acts by a spouse must be accompanied by
do not require an automatic finding of evidence of citizenship of the United
lack of good moral character. A self-pe- States citizen or proof of the immigra-
titioner’s claim of good moral char- tion status of the lawful permanent
acter will be evaluated on a case-by- resident abuser. It must also be accom-
case basis, taking into account the pro- panied by evidence of the relationship.
visions of section 101(f) of the Act and
Primary evidence of a marital relation-
the standards of the average citizen in
ship is a marriage certificate issued by
the community. If the results of record
civil authorities, and proof of the ter-
checks conducted prior to the issuance
mination of all prior marriages, if any,
of an immigrant visa or approval of an
of both the self-petitioner and the
application for adjustment of status
abuser. If the self-petition is based on a
disclose that the self-petitioner is no
claim that the self-petitioner’s child
longer a person of good moral char-
was battered or subjected to extreme
acter or that he or she has not been a
cruelty committed by the citizen or
person of good moral character in the
lawful permanent resident spouse, the
past, a pending self-petition will be de-
nied or the approval of a self-petition self-petition should also be accom-
will be revoked. panied by the child’s birth certificate
(viii) Extreme hardship. The Service or other evidence showing the relation-
will consider all credible evidence of ship between the self-petitioner and
extreme hardship submitted with a the abused child.
self-petition, including evidence of (iii) Residence. One or more docu-
hardship arising from circumstances ments may be submitted showing that
surrounding the abuse. The extreme the self-petitioner and the abuser have
hardship claim will be evaluated on a resided together in the United States.
case-by-case basis after a review of the One or more documents may also be
evidence in the case. Self-petitioners submitted showing that the self-peti-
are encouraged to cite and document tioner is residing in the United States
all applicable factors, since there is no when the self-petition is filed. Employ-
guarantee that a particular reason or ment records, utility receipts, school
reasons will result in a finding that de- records, hospital or medical records,
portation would cause extreme hard- birth certificates of children born in
ship. Hardship to persons other than the United States, deeds, mortgages,
the self-petitioner or the self-peti- rental records, insurance policies, affi-
tioner’s child cannot be considered in davits or any other type of relevant
determining whether a self-petitioning credible evidence of residency may be
spouse’s deportation would cause ex- submitted.
treme hardship. (iv) Abuse. Evidence of abuse may in-
(ix) Good faith marriage. A spousal clude, but is not limited to, reports and
self-petition cannot be approved if the affidavits from police, judges and other
self-petitioner entered into the mar- court officials, medical personnel,
riage to the abuser for the primary school officials, clergy, social workers,
64
and other social service agency per- that one spouse has been listed as the
sonnel. Persons who have obtained an other’s spouse on insurance policies,
order of protection against the abuser property leases, income tax forms, or
or have taken other legal steps to end bank accounts; and testimony or other
the abuse are strongly encouraged to evidence regarding courtship, wedding
submit copies of the relating legal doc- ceremony, shared residence and experi-
uments. Evidence that the abuse vic- ences. Other types of readily available
tim sought safe-haven in a battered evidence might include the birth cer-
women’s shelter or similar refuge may tificates of children born to the abuser
be relevant, as may a combination of and the spouse; police, medical, or
documents such as a photograph of the court documents providing information
visibly injured self-petitioner sup- about the relationship; and affidavits
ported by affidavits. Other forms of of persons with personal knowledge of
credible relevant evidence will also be the relationship. All credible relevant
considered. Documentary proof of non- evidence will be considered.
qualifying abuses may only be used to (3) Decision on and disposition of the
establish a pattern of abuse and vio- petition—(i) Petition approved. If the
lence and to support a claim that self-petitioning spouse will apply for
qualifying abuse also occurred. adjustment of status under section 245
(v) Good moral character. Primary evi- of the Act, the approved petition will
dence of the self-petitioner’s good be retained by the Service. If the self-
moral character is the self-petitioner’s petitioner will apply for an immigrant
affidavit. The affidavit should be ac- visa abroad, the approved self-petition
companied by a local police clearance will be forwarded to the Department of
or a state-issued criminal background State’s National Visa Center.
check from each locality or state in (ii) Petition denied. If the self-petition
the United States in which the self-pe- is denied, the self-petitioner will be no-
titioner has resided for six or more tified in writing of the reasons for the
months during the 3-year period imme- denial and of the right to appeal the
diately preceding the filing of the self- decision.
petition. Self-petitioners who lived (4) Derivative beneficiaries. A child ac-
outside the United States during this companying or following-to-join the
time should submit a police clearance, self-petitioning spouse may be ac-
criminal background check, or similar corded the same preference and pri-
report issued by the appropriate au- ority date as the self-petitioner with-
thority in each foreign country in out the necessity of a separate peti-
which he or she resided for six or more tion, if the child has not been classified
months during the 3-year period imme- as an immigrant based on his or her
diately preceding the filing of the self- own self-petition. A derivative child
petition. If police clearances, criminal who had been included in a parent’s
background checks, or similar reports self-petition may later file a self-peti-
are not available for some or all loca- tion, provided the child meets the self-
tions, the self-petitioner may include petitioning requirements. A child who
an explanation and submit other evi- has been classified as an immigrant
dence with his or her affidavit. The based on a petition filed by the abuser
Service will consider other credible or another relative may also be deriva-
evidence of good moral character, such tively included in a parent’s self-peti-
as affidavits from responsible persons tion. The derivative child must be un-
who can knowledgeably attest to the married, less than 21 years old, and
self-petitioner’s good moral character. otherwise qualify as the self-peti-
(vi) Extreme hardship. Evidence of ex- tioner’s child under section 101(b)(1)(F)
treme hardship may include affidavits, of the Act until he or she becomes a
birth certificates of children, medical lawful permanent resident based on the
reports, protection orders and other derivative classification.
court documents, police reports, and (5) Name change. If the self-peti-
other relevant credible evidence. tioner’s current name is different than
(vii) Good faith marriage. Evidence of the name shown on the documents, evi-
good faith at the time of marriage may dence of the name change (such as the
include, but is not limited to, proof petitioner’s marriage certificate, legal
65
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
document showing name change, or admitted for permanent residence may

other similar evidence) must accom- file a petition on behalf of a child or an
pany the self-petition. unmarried son or daughter for pref-
(6) Prima facie determination. (i) Upon erence classification under section
receipt of a self-petition under para- 203(a)(2) of the Act.
graph (c)(1) of this section, the Service (2) Evidence to support petition for
shall make a determination as to child or son or daughter. In addition to
whether the petition and the sup- evidence of United States citizenship
porting documentation establish a or lawful permanent resident, the peti-
‘‘prima facie case’’ for purposes of 8 tioner must also provide evidence of
U.S.C. 1641, as amended by section 501 the claimed relationship.
of Public Law 104–208. (i) Primary evidence for a legitimate
(ii) For purposes of paragraph (c)(6)(i) child or son or daughter. If a petition is
of this section, a prima facie case is es- submitted by the mother, the birth cer-
tablished only if the petitioner submits tificate of the child showing the moth-
a completed Form I–360 and other evi- er’s name must accompany the peti-
dence supporting all of the elements tion. If the mother’s name on the birth
required of a self-petitioner in para- certificate is different from her name
graph (c)(1) of this section. A finding of on the petition, evidence of the name
prima facie eligibility does not relieve change must also be submitted. If a pe-
the petitioner of the burden of pro- tition is submitted by the father, the
viding additional evidence in support birth certificate of the child, a mar-
of the petition and does not establish riage certificate of the parents, and
eligibility for the underlying petition. proof of legal termination of the par-
(iii) If the Service determines that a ents’ prior marriages, if any, issued by
petitioner has made a ‘‘prima facie civil authorities must accompany the
case,’’ the Service shall issue a Notice petition. If the father’s name has been
of Prima Facie Case to the petitioner. legally changed, evidence of the name
Such Notice shall be valid until the change must also accompany the peti-
Service either grants or denies the pe- tion.
tition. (ii) Primary evidence for a legitimated
(iv) For purposes of adjudicating the child or son or daughter. A child can be
petition submitted under paragraph legitimated through the marriage of
(c)(1) of this section, a prima facie de- his or her natural parents, by the laws
termination— of the country or state of the child’s
(A) Shall not be considered evidence residence or domicile, or by the laws of
in support of the petition; the country or state of the father’s res-
(B) Shall not be construed to make a idence or domicile. If the legitimation
determination of the credibility or pro- is based on the natural parents’ mar-
bative value of any evidence submitted riage, such marriage must have taken
along with that petition; and, place while the child was under the age
(C) Shall not relieve the self-peti- of eighteen. If the legitimation is based
tioner of his or her burden of com- on the laws of the country or state of
plying with all of the evidentiary re- the child’s residence or domicile, the
quirements of paragraph (c)(2) of this law must have taken effect before the
section. child’s eighteenth birthday. If the
(d) Petition for a child or son or daugh- legitimation is based on the laws of the
ter—(1) Eligibility. A United States cit- country or state of the father’s resi-
izen may file a petition on behalf of an dence or domicile, the father must
unmarried child under twenty-one have resided—while the child was
years of age for immediate relative under eighteen years of age—in the
classification under section 201(b) of country or state under whose laws the
the Act. A United States citizen may child has been legitimated. Primary
file a petition on behalf of an unmar- evidence of the relationship should
ried son or daughter over twenty-one consist of the beneficiary’s birth cer-
years of age under section 203(a)(1) or tificate and the parents’ marriage cer-
for a married son or daughter for pref- tificate or other evidence of

erence classification under section legitimation issued by civil authori-
203(a)(3) of the Act. An alien lawfully ties.
66
(iii) Primary evidence for an illegitimate vits of friends, neighbors, school offi-
child or son or daughter. If a petition is cials, or other associates knowledge-
submitted by the mother, the child’s able about the relationship.
birth certificate, issued by civil au- (iv) Primary evidence for a stepchild. If
thorities and showing the mother’s a petition is submitted by a stepparent
name, must accompany the petition. If on behalf of a stepchild or stepson or
the mother’s name on the birth certifi- stepdaughter, the petition must be sup-
cate is different from her name as reported by the stepchild’s or stepson’s
flected in the petition, evidence of the or stepdaughter’s birth certificate,
name change must also be submitted. issued by civil authorities and showing
If the petition is submitted by the pur- the name of the beneficiary’s parent to
ported father of a child or son or whom the petitioner is married, a mar-
daughter born out of wedlock, the fa-
riage certificate issued by civil au-
ther must show that he is the natural
thorities which shows that the peti-
father and that a bona fide parent-child
tioner and the child’s natural parent
relationship was established when the
child or son or daughter was unmarried were married before the stepchild or
and under twenty-one years of age. stepson or stepdaughter reached the
Such a relationship will be deemed to age of eighteen; and evidence of the
exist or to have existed where the fa- termination of any prior marriages of
ther demonstrates or has demonstrated the petitioner and the natural parent
an active concern for the child’s sup- of the stepchild or stepson or step-
port, instruction, and general welfare. daughter.
Primary evidence to establish that the (v) Secondary evidence. When it is es-
petitioner is the child’s natural father tablished that primary evidence is not
is the beneficiary’s birth certificate, available, secondary evidence may be
issued by civil authorities and showing accepted. To determine the availability
the father’s name. If the father’s name of primary documents, the Service will
has been legally changed, evidence of refer to the Department of State’s For-
the name change must accompany the eign Affairs Manual (FAM). When the
petition. Evidence of a parent/child re- FAM shows that primary documents
lationship should establish more than are generally available in the country
merely a biological relationship. Emo- at issue but the petitioner claims that
tional and/or financial ties or a genuine his or her document is unavailable, a
concern and interest by the father for letter from the appropriate registrar
the child’s support, instruction, and stating that the document is not avail-
general welfare must be shown. There able will be required before the Service
should be evidence that the father and will accept secondary evidence. Sec-
child actually lived together or that ondary evidence will be evaluated for
the father held the child out as being its authenticity and credibility. Sec-
his own, that he provided for some or ondary evidence may take the form of
all of the child’s needs, or that in gen-
historical evidence; such evidence must
eral the father’s behavior evidenced a
have been issued contemporaneously
genuine concern for the child. The
with the event which it documents any
most persuasive evidence for estab-
lishing a bona fide parent/child rela- may include, but is not limited to,
tionship and financial responsibility by medical records, school records, and re-
the father is documentary evidence ligious documents. Affidavits may also
which was contemporaneous with the by accepted. When affidavits are sub-
events in question. Such evidence may mitted, they must be sworn to by per-
include, but is not limited to: money sons who were born at the time of and
order receipts or cancelled checks who have personal knowledge of the
showing the father’s financial support event to which they attest. Any affi-
of the beneficiary; the father’s income davit must contain the affiant’s full
tax returns; the father’s medical or in- name and address, date and place of
surance records which include the ben- birth, relationship to the party, if any,
eficiary as a dependent; school records and complete details concerning how

for the beneficiary; correspondence be- the affiant acquired knowledge of the
tween the parties; or notarized affida- event.
67
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
(vi) Blood tests. The director may re- shall be deemed to mark the com-
quire that a specific Blood Group Anti- mencement of legal custody. An infor-
gen Test be conducted of the bene- mal custodial or guardianship docu-
ficiary and the beneficiary’s father and ment, such as a sworn affidavit signed
mother. In general, blood tests will be before a notary public, is insufficient
required only after other forms of evi- for this purpose.
dence have proven inconclusive. If the (B) Evidence must also be submitted
specific Blood Group Antigen Test is to show that the beneficiary resided
also found not to be conclusive and the with the petitioner for at least two
director determines that additional years. Generally, such documentation
evidence is needed, a Human Leucocyte must establish that the petitioner and
Antigen (HLA) test may be requested. the beneficiary resided together in a
Tests will be conducted, at the expense
familial relationship. Evidence of pa-
of the petitioner or beneficiary, by the
rental control may include, but is not
United States Public Health Service
limited to, evidence that the adoptive
physician who is authorized overseas or
parent owns or maintains the property
by a qualified medical specialist des-
ignated by the district director. The re- where the child resides and provides fi-
sults of the test should be reported on nancial support and day-to-day super-
Form G–620. Refusal to submit to a vision. The evidence must clearly indi-
Specific Blood Group Antigen or HLA cate the physical living arrangements
test when requested may constitute a of the adopted child, the adoptive par-
basis for denial of the petition, unless a ent(s), and the natural parent(s) for the
legitimate religious objection has been period of time during which the adop-
established. When a legitimate reli- tive parent claims to have met the res-
gious objection is established, alter- idence requirement. When the adopted
nate forms of evidence may be consid- child continued to reside in the same
ered based upon documentation already household as a natural parent(s) during
submitted. the period in which the adoptive parent
(vii) Primary evidence for an adopted petitioner seeks to establish his or her
child or son or daughter. A petition may compliance with this requirement, the
be submitted on behalf of an adopted petitioner has the burden of estab-
child or son or daughter by a United lishing that he or she exercised pri-
States citizen or lawful permanent mary parental control during that pe-
resident if the adoption took place be- riod of residence.
fore the beneficiary’s sixteenth birth- (C) Legal custody and residence oc-
day, and if the child has been in the curring prior to or after the adoption
legal custody of the adopting parent or will satisfy both requirements. Legal
parents and has resided with the adopt- custody, like residence, is accounted
ing parent or parents for at least two for in the aggregate. Therefore, a break
years. A copy of the adoption decree, in legal custody or residence will not
issued by the civil authorities, must
affect the time already fulfilled. To
accompany the petition.
meet the definition of child contained
(A) Legal custody means the assump-
in sections 101(b)(1)(E) and 101(b)(2) of
tion of responsibility for a minor by an
the Act, the child must have been
adult under the laws of the state and
under the order or approval of a court under 16 years of age when the adop-
of law or other appropriate government tion is finalized.
entity. This provision requires that a (D) On or after the Convention effec-
legal process involving the courts or tive date, as defined in 8 CFR part
other recognized government entity 204.301, a United States citizen who is
take place. If the adopting parent was habitually resident in the United
granted legal custody by the court or States, as determined under 8 CFR
recognized governmental entity prior 204.303, may not file a Form I–130 under
to the adoption, that period may be this section on behalf of child who was
counted toward fulfillment of the two- habitually resident in a Convention
year legal custody requirement. How- country, as determined under 8 CFR

ever, if custody was not granted prior 204.303, unless the adoption was com-
to the adoption, the adoption decree pleted before the Convention effective
68
date. In the case of any adoption occur- showing name change, or other similar
ring on or after the Convention effec- evidence) must accompany the peti-
tive date, a Form I–130 may be filed tion. If the beneficiary’s name has been
and approved only if the United States legally changed, evidence of the name
citizen petitioner was not habitually change must also accompany the peti-
resident in the United States at the tion.
time of the adoption. (e) Self-petition by child of abusive cit-
(E) For purposes of paragraph izen or lawful permanent resident—(1)
(d)(2)(vii)(D) of this section, USCIS will Eligibility. (i) A child may file a self-pe-
deem a United States citizen, 8 CFR tition under section 204(a)(1)(A)(iv) or
204.303 notwithstanding, to have been 204(a)(1)(B)(iii) of the Act if he or she:
habitually resident outside the United (A) Is the child of a citizen or lawful
States, if the citizen satisfies the 2- permanent resident of the United
year joint residence and custody re- States;
quirements by residing with the child (B) Is eligible for immigrant classi-
outside the United States. fication under section 201(b)(2)(A)(i) or
(F) For purposes of paragraph 203(a)(2)(A) of the Act based on that re-
(d)(2)(vii)(D) of this section, USCIS will lationship;
not approve a Form I–130 under section (C) Is residing in the United States;
101(b)(1)(E) of the Act on behalf of an (D) Has resided in the United States
alien child who is present in the United with the citizen or lawful permanent
States based on an adoption that is en- resident parent;
tered on or after the Convention effec- (E) Has been battered by, or has been
tive date, but whose habitual residence the subject of extreme cruelty per-
immediately before the child’s arrival petrated by, the citizen or lawful per-
in the United States was in a Conven- manent resident parent while residing
tion country. However, the U.S. citizen with that parent;
seeking the child’s adoption may file a (F) Is a person of good moral char-
Form I–800A and Form I–800 under 8 acter; and
CFR part 204, subpart C. (G) Is a person whose deportation
(3) Decision on and disposition of peti- would result in extreme hardship to
tion. The approved petition will be for- himself or herself.
warded to the Department of State’s (ii) Parent-child relationship to the
Processing Center. If the beneficiary is abuser. The self-petitioning child must
in the United States and is eligible for be unmarried, less than 21 years of age,
adjustment of status under section 245 and otherwise qualify as the abuser’s
of the Act, the approved petition will child under the definition of child con-
be retained by the Service. If the peti- tained in section 101(b)(1) of the Act
tion is denied, the petitioner will be when the petition is filed and when it
notified of the reasons for the denial is approved. Termination of the abus-
and of the right to appeal in accord- er’s parental rights or a change in legal
ance with the provisions of 8 CFR 3.3. custody does not alter the self-peti-
(4) Derivative beneficiaries. A spouse or tioning relationship provided the child
child accompanying or following to meets the requirements of section
join a principal alien as used in this 101(b)(1) of the Act.
section may be accorded the same pref- (iii) Citizenship or immigration status
erence and priority date as the prin- of the abuser. The abusive parent must
cipal alien without the necessity of a be a citizen of the United States or a
separate petition. However, a child of lawful permanent resident of the
an alien who is approved for classifica- United States when the petition is filed
tion as an immediate relative is not el- and when it is approved. Changes in the
igible for derivative classification and abuser’s citizenship or lawful perma-
must have a separate petition approved nent resident status after the approval
on his or her behalf. will have no effect on the self-petition.
(5) Name change. When the peti- A self-petition approved on the basis of
tioner’s name does not appear on the a relationship to an abusive lawful per-
child’s birth certificate, evidence of the manent resident will not be automati-
name change (such as the petitioner’s cally upgraded to immediate relative
marriage certificate, legal document status. The self-petitioning child would
69
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
not be precluded, however, from filing under section 212(a) of the Act would
a new self-petition for immediate rel- not be precluded from being found to be
ative classification after the abuser’s a person of good moral character, pro-
naturalization, provided the self-peti- vided the person has not been con-
tioning child continues to meet the victed for the commission of the of-
self-petitioning requirements. fense or offenses in a court of law. A
(iv) Eligibility for immigrant classifica- self-petitioner will also be found to
tion. A self-petitioner is required to lack good moral character, unless he or
comply with the provisions of section she establishes extenuating cir-
204(c) of the Act, section 204(g) of the cumstances, if he or she willfully failed
Act, and section 204(a)(2) of the Act. or refused to support dependents; or
(v) Residence. A self-petition will not committed unlawful acts that ad-
be approved if the self-petitioner is not versely reflect upon his or her moral
residing in the United States when the character, or was convicted or impris-
self-petition is filed. The self-petitioner oned for such acts, although the acts
is not required to be living with the do not require an automatic finding of
abuser when the petition is filed, but lack of good moral character. A self-pe-
he or she must have resided with the titioner’s claim of good moral char-
abuser in the United States in the past. acter will be evaluated on a case-by-
(vi) Battery or extreme cruelty. For the case basis, taking into account the pro-
purpose of this chapter, the phrase visions of section 101(f) of the Act and
‘‘was battered by or was the subject of the standards of the average citizen in
extreme cruelty’’ includes, but is not the community. If the results of record
limited to, being the victim of any act checks conducted prior to the issuance
or threatened act of violence, including of an immigrant visa or approval of an
any forceful detention, which results or application for adjustment of status
threatens to result in physical or men- disclose that the self-petitioner is no
tal injury. Psychological or sexual longer a person of good moral char-
abuse or exploitation, including rape, acter or that he or she has not been a
molestation, incest (if the victim is a person of good moral character in the
minor), or forced prostitution shall be past, a pending self-petition will be de-
considered acts of violence. Other abu- nied or the approval of a self-petition
sive actions may also be acts of vio- will be revoked.
lence under certain circumstances, in- (viii) Extreme hardship. The Service
cluding acts that, in and of themselves, will consider all credible evidence of
may not initially appear violent but extreme hardship submitted with a
are a part of an overall pattern of vio- self-petition, including evidence of
lence. The qualifying abuse must have hardship arising from circumstances
been committed by the citizen or law- surrounding the abuse. The extreme
ful permanent resident parent, must hardship claim will be evaluated on a
have been perpetrated against the self- case-by-case basis after a review of the
petitioner, and must have taken place evidence in the case. Self-petitioners
while the self-petitioner was residing are encouraged to cite and document
with the abuser. all applicable factors, since there is no
(vii) Good moral character. A self-peti- guarantee that a particular reason or
tioner will be found to lack good moral reasons will result in a finding that de-
character if he or she is a person deportation would cause extreme hard-
scribed in section 101(f) of the Act. Ex- ship. Hardship to persons other than
tenuating circumstances may be taken the self-petitioner cannot be consid-
into account if the person has not been ered in determining whether a self-pe-
convicted of an offense or offenses but titioning child’s deportation would
admits to the commission of an act or cause extreme hardship.
acts that could show a lack of good (2) Evidence for a child’s self-petition—
moral character under section 101(f) of (i) General. Self-petitioners are encour-
the Act. A person who was subjected to aged to submit primary evidence when-
abuse in the form of forced prostitution ever possible. The Service will con-
or who can establish that he or she was sider, however, any credible evidence
forced to engage in other behavior that relevant to the petition. The deter-
could render the person excludable mination of what evidence is credible
70
and the weight to be given that evi- tioner is residing in the United States
dence shall be within the sole discre- when the self-petition is filed. Employ-
tion of the Service. ment records, school records, hospital
(ii) Relationship. A self-petition filed or medical records, rental records, in-
by a child must be accompanied by evi- surance policies, affidavits or any
dence of citizenship of the United other type of relevant credible evi-
States citizen or proof of the immigra- dence of residency may be submitted.
tion status of the lawful permanent (iv) Abuse. Evidence of abuse may in-
resident abuser. It must also be accom- clude, but is not limited to, reports and
panied by evidence of the relationship. affidavits from police, judges and other
Primary evidence of the relationship court officials, medical personnel,
between: school officials, clergy, social workers,
(A) The self-petitioning child and an and other social service agency per-
abusive biological mother is the self- sonnel. Persons who have obtained an
petitioner’s birth certificate issued by order of protection against the abuser
civil authorities; or taken other legal steps to end the
(B) A self-petitioning child who was abuse are strongly encouraged to sub-
born in wedlock and an abusive biologi- mit copies of the relating legal docu-
cal father is the child’s birth certifi- ments. Evidence that the abuse victim
cate issued by civil authorities, the sought safe-haven in a battered wom-
marriage certificate of the child’s par- en’s shelter or similar refuge may be
ents, and evidence of legal termination relevant, as may a combination of doc-
of all prior marriages, if any; uments such as a photograph of the
(C) A legitimated self-petitioning visibly injured self-petitioner sup-
child and an abusive biological father ported by affidavits. Other types of
is the child’s birth certificate issued by credible relevant evidence will also be
civil authorities, and evidence of the considered. Documentary proof of non-
child’s legitimation; qualifying abuse may only be used to
(D) A self-petitioning child who was establish a pattern of abuse and vio-
born out of wedlock and an abusive bio- lence and to support a claim that
logical father is the child’s birth cer- qualifying abuse also occurred.
tificate issued by civil authorities (v) Good moral character. Primary evi-
showing the father’s name, and evidence of the self-petitioner’s good
dence that a bona fide parent-child re- moral character is the self-petitioner’s
lationship has been established be- affidavit. The affidavit should be ac-
tween the child and the parent; companied by a local police clearance
(E) A self-petitioning stepchild and or a state-issued criminal background
an abusive stepparent is the child’s check from each locality or state in
birth certificate issued by civil au- the United States in which the self-pe-
thorities, the marriage certificate of titioner has resided for six or more
the child’s parent and the stepparent months during the 3-year period imme-
showing marriage before the stepchild diately preceding the filing of the self-
reached 18 years of age, and evidence of petition. Self-petitioners who lived
legal termination of all prior mar- outside the United States during this
riages of either parent, if any; and time should submit a police clearance,
(F) An adopted self-petitioning child criminal background check, or similar
and an abusive adoptive parent is an report issued by the appropriate au-
adoption decree showing that the adop- thority in the foreign country in which
tion took place before the child he or she resided for six or more
reached 16 years of age, and evidence months during the 3-year period imme-
that the child has been residing with diately preceding the filing of the self-
and in the legal custody of the abusive petition. If police clearances, criminal
adoptive parent for at least 2 years. background checks, or similar reports
(iii) Residence. One or more docu- are not available for some or all loca-
ments may be submitted showing that tions, the self-petitioner may include
the self-petitioner and the abuser have an explanation and submit other evi-
resided together in the United States. dence with his or her affidavit. The
One or more documents may also be Service will consider other credible
submitted showing that the self-peti- evidence of good moral character, such
71
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
as affidavits from responsible persons prima facie eligibility does not relieve
who can knowledgeably attest to the the petitioner of the burden of pro-
self-petitioner’s good moral character. viding additional evidence in support
A child who is less than 14 years of age of the petition and does not establish
is presumed to be a person of good eligibility for the underlying petition.
moral character and is not required to (iii) If the Service determines that a
submit affidavits of good moral char- petitioner has made a ‘‘prima facie
acter, police clearances, criminal back- case’’ the Service shall issue a Notice
ground checks, or other evidence of of Prima Facie Case to the petitioner.
good moral character. Such Notice shall be valid until the
(vi) Extreme hardship. Evidence of ex- Service either grants or denies the pe-
treme hardship may include affidavits, tition.
medical reports, protection orders and (iv) For purposes of adjudicating the
other court documents, police reports, petition submitted under paragraph
and other relevant credible evidence. (e)(1) of this section, a prima facie de-
(3) Decision on and disposition of the termination:
petition—(i) Petition approved. If the (A) Shall not be considered evidence
self-petitioning child will apply for ad- in support of the petition;
justment of status under section 245 of (B) Shall not be construed to make a
the Act, the approved petition will be determination of the credibility or pro-
retained by the Service. If the self-peti- bative value of any evidence submitted
tioner will apply for an immigrant visa along with that petition; and,
abroad, the approved self-petition will (C) Shall not relieve the self-peti-
be forwarded to the Department of tioner of his or her burden of com-
State’s National Visa Center. plying with all of the evidentiary re-
(ii) Petition denied. If the self-petition quirements of paragraph (e)(2) of this
is denied, the self-petitioner will be no- section.
tified in writing of the reasons for the (f) Petition for a parent—(1) Eligibility.
denial and of the right to appeal the Only a United States citizen who is
decision. twenty-one years of age or older may
(4) Derivative beneficiaries. A child of a file a petition on behalf of a parent for
self-petitioning child is not eligible for classification under section 201(b) of
derivative classification and must have the Act.
a petition filed on his or her behalf if (2) Evidence to support a petition for a
seeking immigrant classification. parent. In addition to evidence of
(5) Name change. If the self-peti- United States citizenship as listed in
tioner’s current name is different than § 204.1(g) of this part, the petitioner
the name shown on the documents, evi- must also provide evidence of the
dence of the name change (such as the claimed relationship.
petitioner’s marriage certificate, legal (i) Primary evidence if petitioner is a le-
document showing the name change, or gitimate son or daughter. If a petition is
other similar evidence) must accom- submitted on behalf of the mother, the
pany the self-petition. birth certificate of the petitioner show-
(6) Prima facie determination. (i) Upon ing the mother’s name must accom-
receipt of a self-petition under para- pany the petition. If the mother’s name
graph (e)(1) of this section, the Service on the birth certificate is different
shall make a determination as to from her name as reflected in the peti-
whether the petition and the sup- tion, evidence of the name change must
porting documentation establish a also be submitted. If a petition is sub-
‘‘prima facie case’’ for purposes of 8 mitted on behalf of the father, the
U.S.C. 1641, as amended by section 501 birth certificate of the petitioner, a
of Public Law 104–208. marriage certificate of the parents, and
(ii) For purposes of paragraph (e)(6)(i) proof of legal termination of the par-
of this section, a prima facie case is es- ents’ prior marriages, if any, issued by
tablished only if the petitioner submits civil authorities must accompany the
a completed Form I–360 and other evi- petition. If the father’s name on the
dence supporting all of the elements birth certificate has been legally
required of a self-petitioner in para- changed, evidence of the name change
graph (e)(1) of this section. A finding of must also accompany the petition.
72
(ii) Primary evidence if petitioner is a tion. Evidence of a parent/child rela-

legitimated son or daughter. A child can tionship should establish more than
be legitimated through the marriage of merely a biological relationship. Emo-
his or her natural parents, by the laws tional and/or financial ties or a genuine
of the country or state of the child’s concern and interest by the father for
residence or domicile, or by the laws of the child’s support, instruction, and
the country or state of the father’s res- general welfare must be shown. There
idence or domicile. If the legitimation should be evidence that the father and
is based on the natural parent’s mar- child actually lived together or that
riage, such marriage must have taken the father held the child out as being
place while the child was under the age his own, that he provided for some or
of eighteen. If the legitimation is based all of the child’s needs, or that in gen-
on the laws of the country or state of eral the father’s behavior evidenced a
the child’s residence or domicile, the genuine concern for the child. The
law must have taken effect before the most persuasive evidence for estab-
child’s eighteenth birthday. If the lishing a bona fide parent/child rela-
legitimation is based on the laws of the tionship is documentary evidence
country or state of the father’s resi- which was contemporaneous with the
dence or domicile, the father must events in question. Such evidence may
have resided—while the child was include, but is not limited to: money
under eighteen years of age—in the order receipts or cancelled checks
country or state under whose laws the showing the father’s financial support
child has been legitimated. Primary of the beneficiary; the father’s income
evidence of the relationship should tax returns; the father’s medical or in-
consist of petitioner’s birth certificate surance records which include the peti-
and the parents’ marriage certificate tioner as a dependent; school records
or other evidence of legitimation for the petitioner; correspondence be-
issued by civil authorities. tween the parties; or notarized affida-
(iii) Primary evidence if the petitioner is vits of friends, neighbors, school offi-
an illegitimate son or daughter. If a peti- cials, or other associates knowledge-
tion is submitted on behalf of the able as to the relationship.
mother, the petitioner’s birth certifi- (iv) Primary evidence if petitioner is an
cate, issued by civil authorities and adopted son or daughter. A petition may
showing the mother’s name, must ac- be submitted for an adoptive parent by
company the petition. If the mother’s a United States citizen who is twenty-
name on the birth certificate is dif- one years of age or older if the adop-
ferent from her name as reflected in tion took place before the petitioner’s
the petition, evidence of the name sixteenth birthday and if the two year
change must also be submitted. If the legal custody and residence require-
petition is submitted on behalf of the ments have been met. A copy of the
purported father of the petitioner, the adoption decree, issued by the civil au-
petitioner must show that the bene- thorities, must accompany the peti-
ficiary is his or her natural father and tion.
that a bona fide parent-child relation- (A) Legal custody means the assump-
ship was established when the petition of responsibility for a minor by an
tioner was unmarried and under twen- adult under the laws of the state and
ty-one years of age. Such a relation- under the order or approval of a court
ship will be deemed to exist or to have of law or other appropriate government
existed where the father demonstrates entity. This provision requires that a
or has demonstrated an active concern legal process involving the courts or
for the child’s support, instruction, and other recognized government entity
general welfare. Primary evidence to take place. If the adopting parent was
establish that the beneficiary is the pe- granted legal custody by the court or
titioner’s natural father is the peti- recognized governmental entity prior
tioner’s birth certificate, issued by to the adoption, that period may be
civil authorities and showing the fa- counted toward fulfillment of the two-
ther’s name. If the father’s name has year legal custody requirement. How-
been legally changed, evidence of the ever, if custody was not granted prior
name change must accompany the peti- to the adoption, the adoption decree
73
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
shall be deemed to mark the com- tive classification and must have a sep-
mencement of legal custody. An infor- arate petition approved on his or her
mal custodial or guardianship docu- behalf.
ment, such as a sworn affidavit signed (g) Petition for a brother or sister—(1)
before a notary public, is insufficient Eligibility. Only a United States citizen
for this purpose. who is twenty-one years of age or older
(B) Evidence must also be submitted may file a petition of a brother or sis-
to show that the beneficiary resided ter for classification under section
with the petitioner for at least two 203(a)(4) of the Act.
years. Generally, such documentation (2) Evidence to support a petition for
must establish that the petitioner and brother or sister. In addition to evidence
the beneficiary resided together in a of United States citizenship, the peti-
parental relationship. The evidence tioner must also provide evidence of
must clearly indicate the physical liv- the claimed relationship.
ing arrangements of the adopted child, (i) Primary evidence if the siblings
the adoptive parent(s), and the natural share a common mother or are both legiti-
parent(s) for the period of time during mate children of a common father. If a
which the adoptive parent claims to sibling relationship is claimed through
have met the residence requirement. a common mother, the petition must
(C) Legal custody and residence oc- be supported by a birth certificate of
curring prior to or after the adoption the petitioner and a birth certificate of
will satisfy both requirements. Legal the beneficiary showing a common
custody, like residence, is accounted mother. If the mother’s name on one
for in the aggregate. Therefore, a break birth certificate is different from her
in legal custody or residence will not name as reflected on the other birth
affect the time already fulfilled. To certificate or in the petition, evidence
meet the definition of child contained of the name change must also be sub-
in sections 101(b)(1)(E) and 101(b)(2) of mitted. If a sibling relationship is
the Act, the child must have been claimed through a common father, the
under 16 years of age when the adop- birth certificates of the beneficiary and
tion is finalized. petitioner, a marriage certificate of
(v) Name change. When the petition is the parents’ and proof of legal termi-
filed by a child for the child’s parent, nation of the parents, prior mar-
and the parent’s name is not on the riage(s), if any, issued by civil authori-
child’s birth certificate, evidence of the ties must accompany the petition. If
name change (such as the parent’s mar- the father’s name has been legally
riage certificate, a legal document changed, evidence of the name change
showing the parent’s name change, or must also accompany the petition.
other similar evidence) must accom- (ii) Primary evidence if either or both
pany the petition. If the petitioner’s siblings are legitimated. A child can be
name has been legally changed, evi- legitimated through the marriage of
dence of the name change must also ac- his or her natural parents, by the laws
company the petition. of the country or state of the child’s
(3) Decision on and disposition of peti- residence or domicile, or by the laws of
tion. The approved petition will be for- the country or state of the father’s res-
warded to the Department of State’s idence or domicile. If the legitimation
Processing Center. If the beneficiary is is based on the natural parents’ mar-
in the United States and is eligible for riage, such marriage must have taken
adjustment of status under section 245 place while the child was under the age
of the Act, the approved petition will of eighteen. If the legitimation is based
be retained by the Service. If the peti- on the laws of the country or state of
tion is denied, the petitioner will be the child’s residence or domicile, the
notified of the reasons for the denial law must have taken effect before the
and of the right to appeal in accord- child’s eighteenth birthday. If based on
ance with the provisions of 8 CFR 3.3. the laws of the country or state of the
(4) Derivative beneficiaries. A child or father’s residence or domicile, the fa-
a spouse of a principal alien who is ap- ther must have resided—while the child
proved for classification as an imme- was under eighteen years of age—in the
diate relative is not eligible for deriva- country or state under whose laws the
74
child has been legitimated. Primary vits of friends, neighbors, school offi-
evidence of the relationship should cials, or other associates knowledge-
consist of the petitioner’s birth certifi- able about the relationship.
cate, the beneficiary’s birth certificate, (iv) Primary evidence for stepsiblings. If
and the parents’ marriage certificate the petition is submitted on behalf of a
or other evidence of legitimation brother or sister having a common fa-
issued by civil authorities. ther, the relationship of both the peti-
(iii) Primary evidence if either sibling is tioner and the beneficiary to the father
illegitimate. If one or both of the sib- must be established as required in
lings is (are) the illegitimate child(ren) paragraphs (g)(2)(ii) and (g)(2)(iii) of
of a common father, the petitioner this section. If the petitioner and bene-
must show that they are the natural ficiary are stepsiblings through the
children of the father and that a bona marriages of their common father to
fide parent-child relationship was es- different mothers, the marriage certifi-
tablished when the illegitimate cates of the parents and evidence of the
child(ren) was (were) unmarried and termination of any prior marriages of
under twenty-one years of age. Such a the parents must be submitted.
relationship will be deemed to exist or (3) Decision on and disposition of peti-
to have existed where the father dem- tion. The approved petition will be for-
onstrates or has demonstrated an ac- warded to the Department of State’s
tive concern for the child’s support, in- Processing Center. If the beneficiary is
struction, and general welfare. Pri- in the United States and is eligible for
mary evidence is the petitioner’s and adjustment of status under section 245
beneficiary’s birth certificates, issued of the Act, the approved petition will
by civil authorities and showing the fa- be retained by the Service. If the peti-
ther’s name, and evidence that the sib- tion is denied, the petitioner will be
lings have or had a bona fide parent/ notified of the reasons for the denial
child relationship with the natural fa-
and of the right to appeal in accord-
ther. If the father’s name has been le-
ance with the provisions of 8 CFR 3.3.
gally changed, evidence of the name
(4) Derivative beneficiaries. A spouse or
change must accompany the petition.
Evidence of a parent/child relationship a child accompanying or following to
should establish more than merely a join a principal alien beneficiary under
biological relationship. Emotional and/ this section may be accorded the same
or financial ties or a genuine concern preference and priority date as the
and interest by the father for the principal alien without the necessity of
child’s support, instruction, and gen- a separate petition.
eral welfare must be shown. There (5) Name change. If the name of the
should be evidence that the father and petitioner, the beneficiary, or both has
child actually lived together or that been legally changed, evidence showing
the father held the child out as being the name change (such as a marriage
his own, that he provided for some or certificate, a legal document showing
all of the child’s needs, or that in gen- the name change, or other similar evi-
eral the father’s behavior evidenced a dence) must accompany the petition.
genuine concern for the child. The (h) Validity of approved petitions—(1)
most persuasive evidence for estab- General. Unless terminated pursuant to
lishing a bona fide parent/child rela- section 203(g) of the Act or revoked
tionship is documentary evidence pursuant to part 205 of this chapter,
which was contemporaneous with the the approval of a petition to classify an
events in question. Such evidence may alien as a preference immigrant under
include, but is not limited to: money paragraphs (a)(1), (a)(2), (a)(3), or (a)(4)
order receipts or canceled checks show- of section 203 of the Act, or as an im-
ing the father’s financial support of the mediate relative under section 201(b) of
beneficiary; the father’s income tax re- the Act, shall remain valid for the du-
turns; the father’s medical or insur- ration of the relationship to the peti-
ance records which include the bene- tioner and of the petitioner’s status as
ficiary as a dependent; school records established in the petition.

for the beneficiary; correspondence be- (2) Subsequent petition by same peti-
tween the parties; or notarized affida- tioner for same beneficiary. When a visa
75
§ 204.2 8 CFR Ch. I (1–1–15 Edition)
petition has been approved, and subse- approved for preference status under
quently a new petition by the same pe- section 203(a)(3) of the Act as of the
titioner is approved for the same pref- date the beneficiary marries. The bene-
erence classification on behalf of the ficiary’s priority date is the same as
same beneficiary, the latter approval the date the petition for classification
shall be regarded as a reaffirmation or under section 203(a)(1) of the Act was
reinstatement of the validity of the properly filed.
original petition, except when the (ii) A currently valid petition pre-
original petition has been terminated viously approved to classify a child of a
pursuant to section 203(g) of the Act or United States citizen as an immediate
revoked pursuant to part 205 of this relative under section 201(b) of the Act
chapter, or when an immigrant visa shall be regarded as having been ap-
has been issued to the beneficiary as a proved for preference status under sec-
result of the petition approval. A self- tion 203(a)(3) of the Act as of the date
petition filed under section the beneficiary marries. The bene-
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), ficiary’s priority date is the same as
204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the the date the petition for 201(b) classi-
Act based on the relationship to an fication was properly filed.
abusive citizen or lawful permanent (iii) A currently valid petition
resident of the United States will not classifying the married son or married
be regarded as a reaffirmation or rein- daughter of a United States citizen for
statement of a petition previously filed preference status under section
by the abuser. A self-petitioner who 203(a)(3) of the Act shall, upon legal
has been the beneficiary of a visa peti- termination of the beneficiary’s mar-
tion filed by the abuser to accord the riage, be regarded as having been ap-
self-petitioner immigrant classifica- proved under section 203(a)(1) of the
tion as his or her spouse or child, how- Act if the beneficiary is over twenty-
ever, will be allowed to transfer the one years of age. The beneficiary’s pri-
visa petition’s priority date to the self- ority date is the same as the date the
petition. The visa petition’s priority petition for classification under sec-
date may be assigned to the self-petition 203(a)(3) of the Act was properly
tion without regard to the current va- filed. If the beneficiary is under twen-
lidity of the visa petition. The burden ty-one years of age, the petition shall
of proof to establish the existence of be regarded as having been approved
and the filing date of the visa petition for classification as an immediate rel-
lies with the self-petitioner, although ative under section 201(b) of the Act as
the Service will attempt to verify a of the date the petition for classifica-
claimed filing through a search of the tion under section 203(a)(3) of the Act
Service’s computerized records or other was properly filed.
records deemed appropriate by the ad- (iv) A currently valid visa petition
judicating officer. A new self-petition previously approved to classify the
filed under section 204(a)(1)(A)(iii), beneficiary as an immediate relative as
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or the spouse of a United States citizen
204(a)(1)(B)(iii) of the Act will not be must be regarded, upon the death of
regarded as a reaffirmation or rein- the petitioner, as having been approved
statement of the original self-petition as a Form I–360, Petition for
unless the prior and the subsequent Amerasian, Widow(er) or Special Immi-
self-petitions are based on the relation- grant for classification under para-
ship to the same abusive citizen or law- graph (b) of this section, if, on the date
ful permanent resident of the United of the petitioner’s death, the bene-
States. ficiary satisfies the requirements of
(i) Automatic conversion of preference paragraph (b)(1) of this section. If the
classification—(1) By change in bene- petitioner dies before the petition is
ficiary’s marital status. (i) A currently approved, but, on the date of the peti-
valid petition previously approved to tioner’s death, the beneficiary satisfies
classify the beneficiary as the unmar- the requirements of paragraph (b)(1) of
ried son or daughter of a United States this section, then the petition shall be
citizen under section 203(a)(1) of the adjudicated as if it had been filed as a
Act shall be regarded as having been Form I–360, Petition for Amerasian,
76
Widow(er) or Special Immigrant under as provided for in section 101(b)(1)(F) of

paragraph (b) of this section. the Act.
(2) By the beneficiary’s attainment of (1) Except as provided in paragraph
the age of twenty-one years. A currently (a)(2) of this section, a child who meets
valid petition classifying the child of a the definition of orphan contained in
United States citizen as an immediate section 101(b)(1)(F) of the Act is eligi-
relative under section 201(b) of the Act ble for classification as the immediate
shall be regarded as having been ap- relative of a U.S. citizen if:
proved for preference status under sec- (i) The U.S. citizen seeking the
tion 203(a)(1) of the Act as of the bene- child’s immigration can document that
ficiary’s twenty-first birthday. The the citizen (and his or her spouse, if
beneficiary’s priority date is the same any) are capable of providing, and will
as the date the petition for section provide, proper care for an alien or-
201(b) classification was filed. phan; and
(3) By the petitioner’s naturalization. (ii) The child is an orphan under sec-
Effective upon the date of naturalization 101(b)(1)(F) of the Act.
tion of a petitioner who had been law- A U.S. citizen may submit the docu-
fully admitted for permanent resi- mentation necessary for each of these
dence, a currently valid petition ac- determinations separately or at one
cording preference status under section time, depending on when the orphan is
203(a)(2) of the Act to the petitioner’s identified.
spouse and unmarried children under (2) Form I–600A or Form I–600 may
twenty-one years of age shall be re- not be filed under this section on or
garded as having been approved for im- after the Convention effective date, as
mediate relative status under section defined in 8 CFR 204.301, on behalf of a
201(b) of the Act. Similarly, a currently child who is habitually resident in a
valid petition according preference sta- Convention country, as defined in 8
tus under section 203(a)(2) of the Act CFR 204.301. On or after the Convention
for the unmarried son or daughter over effective date, USCIS may approve a
twenty-one years of age shall be re- Form I–600 on behalf of a child who is
garded as having been approved under habitually resident in a Convention
section 203(a)(1) of the Act. In any case country only if the Form I–600A or
of conversion to classification under Form I–600 was filed before the Conven-
section 203(a)(1) of the Act, the bene- tion effective date.
ficiary’s priority date is the same as (b) Definitions. As used in this sec-
the date the petition for classification tion, the term:
under section 203(a)(2) of the Act was Abandonment by both parents means
properly filed. A self-petition filed that the parents have willfully for-
under section 204(a)(1)(B)(ii) or saken all parental rights, obligations,
204(a)(1)(B)(iii) of the Act based on the and claims to the child, as well as all
relationship to an abusive lawful per- control over and possession of the
manent resident of the United States child, without intending to transfer, or
for classification under section 203(a)(2) without transferring, these rights to
of the Act will not be affected by the any specific person(s). Abandonment
abuser’s naturalization and will not be must include not only the intention to
automatically converted to a petition surrender all parental rights, obliga-
for immediate relative classification. tions, and claims to the child, and con-
trol over and possession of the child,
[57 FR 41057, Sept. 9, 1992, as amended at 60
but also the actual act of surrending
FR 34090, June 30, 1995; 60 FR 38948, July 31,
1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62 such rights, obligations, claims, con-
FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13, trol, and possession. A relinquishment
1997; 71 FR 35749, June 21, 2006; 72 FR 19107, or release by the parents to the pro-
Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007] spective adoptive parents or for a spe-
cific adoption does not constitute
§ 204.3 Orphan cases under section abandonment. Similarly, the relin-
101(b)(1)(F) of the Act (non-Conven- quishment or release of the child by
tion cases). the parents to a third party for custo-

(a) This section addresses the immi- dial care in anticipation of, or prepara-
gration classification of alien orphans tion for, adoption does not constitute
77

Department of Homeland Security 204.2

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Department of Homeland Security 204.2

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Department of Homeland Security § 204.

ital relationship. (Each affidavit must

the affidavit; his or her relationship, if or conspiracy must be contained in the

alien under section 203(a)(2) of the Act

child will be accorded second pref- her document is unavailable, a letter

forced to engage in other behavior that purpose of circumventing the immigra-

document showing name change, or admitted for permanent residence may

for a married son or daughter for pref- tificate or other evidence of

eficiary as a dependent; school records and complete details concerning how

year legal custody requirement. How- country, as determined under 8 CFR

(ii) Primary evidence if petitioner is a tion. Evidence of a parent/child rela-

ficiary as a dependent; school records established in the petition.

Widow(er) or Special Immigrant under as provided for in section 101(b)(1)(F) of

tion cases). the parents to a third party for custo-

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