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in question. When an interview is required, all original documents must be presented for examination at the interview.

(3) Foreign language documents must be accompanied by an English translation which has been certified by a competent translator.

(g) Evidence of petitioner's United States citizenship or lawful permanent residence-(1) Primary evidence. A petition must be accompanied by one of the following:

(i) A birth certificate that was issued by a civil authority and that establishes the petitioner's birth in the United States;

(ii) An unexpired United States passport issued initially for a full ten-year period to a petitioner over the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national);

(iii) An unexpired United States passport issued initially for a full five-year period to the petitioner under the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national);

(iv) A statement executed by a United States consular officer certifying the petitioner to be a United States citizen and the bearer of a currently valid United States passport;

(v) The petitioner's Certificate of Naturalization or Certificate of Citizenship;

(vi) Department of State Form FS240, Report of Birth Abroad of a Citizen of the United States, relating to the petitioner;

(vii) The petitioner's Form I-551, Permanent Resident Card, or other proof given by the Service as evidence of lawful permanent residence. Photocopies of Form I-551 or of a Certificate of Naturalization or Certificate of Citizenship may be submitted as evidence of status as a lawfully permanent resident or United States citizen, respectively.

(2) Secondary evidence. If primary evidence is unavailable, the petitioner must present secondary evidence. Any evidence submitted as secondary evidence will be evaluated for authenticity and credibility. Secondary evidence may include, but is not limited

to, one or more of the following documents:

(i) A baptismal certificate with the seal of the church, showing the date and place of birth in the United States and the date of baptism;

(ii) Affidavits sworn to by persons who were living at the time and who have personal knowledge of the event to which they attest. The affidavits must contain the affiant's full name and address, date and place of birth, relationship to the parties, if any, and complete details concerning how the affiant acquired knowledge of the event;

(iii) Early school records (preferably from the first school) showing the date of admission to the school, the child's date and place of birth, and the name(s) and place(s) of birth of the parent(s);

(iv) Census records showing the name, place of birth, and date of birth or age of the petitioner; or

(v) If it is determined that it would cause unusual delay or hardship to obtain documentary proof of birth in the United States, a United States citizen petitioner who is a member of the Armed Forces of the United States and who is serving outside the United States may submit a statement from the appropriate authority of the Armed Forces. The statement should attest to the fact that the personnel records of the Armed Forces show that the petitioner was born in the United States on a certain date.

(3) Evidence submitted with a self-petition. If a self-petitioner filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present primary or secondary evidence of the abuser's status, the Service will attempt to electronically verify the abuser's citizenship or immigration status from information contained in Service computerized records. Other Service records may also be reviewed at the discretion of the adjudicating officer. If the Service is unable to identify a record as relating to the abuser or the record does not establish the abuser's immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.

(h) Requests for additional documentation. When the Service determines that the evidence is not sufficient, an explanation of the deficiency will be provided and additional evidence will be requested. The petitioner will be given 60 days to present additional evidence, to withdraw the petition, to request a decision based on the evidence submitted, or to request additional time to respond. If the director determines that the initial 60-day period is insufficient to permit the presentation of additional documents, the director may provide an additional 60 days for the submission. The total time shall not exceed 120 days, unless unusual circumstances exist. Failure to respond to a request for additional evidence will result in a decision based on the evidence previously submitted. (57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993; 61 FR 13072, 13073, Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998]

8204.2 Petitions for relatives, widows

and widowers, and abused spouses

and children. (a) Petition for a spouse—(1) Eligibility. A United States citizen or alien admitted for lawful permanent residence may file a petition on behalf of a spouse.

(i) Marriage within five years of petitioner's obtaining lawful permanent resident status. (A) A visa petition filed on behalf of an alien by a lawful permanent resident spouse may not be approved if the marriage occurred within five years of the petitioner being accorded the status of lawful permanent resident based upon a prior marriage to a United States citizen or alien lawfully admitted for permanent residence, unless:

(1) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purposes of evading the immigration laws; or

(2) The marriage through which the petitioner obtained permanent residence was terminated through death.

(B) Documentation. The petitioner should submit documents which cover the period of the prior marriage. The types of documents which may establish that the prior marriage was not

entered into for the purpose of evading the immigration laws include, but are not limited to:

(1) Documentation showing joint ownership of property;

(2) A lease showing joint tenancy of a common residence;

(3) Documentation showing commingling of financial resources;

(4) Birth certificate(s) of child(ren) born to the petitioner and prior spouse;

(5) Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the prior marital relationship. (Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit; his or her relationship, if any, to the petitioner, beneficiary or prior spouse; and complete information and details explaining how the person acquired his or her knowledge of the prior marriage. The affiant may be required to testify before an immigration officer about the information contained in the affidavit. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph.); or

(6) Any other documentation which is relevant to establish that the prior marriage was not entered into in order to evade the immigration laws of the United States.

(C) The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws. Failure to meet the "clear and convincing evidence" standard will result in the denial of the petition. Such a denial shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence. The director may choose to initiate deportation proceedings based upon

information gained through the adjudication of the petition; however, failure to initiate such proceedings shall not establish that the petitioner's prior marriage was not entered into for the purpose of evading the immigration laws. Unless the petition is approved, the beneficiary shall not be accorded a filing date within the meaning of section 203(c) of the Act based upon any spousal second preference petition.

(ii) Fraudulent marriage prohibition. (2) Lease showing joint tenancy of a Section 204(c) of the Act prohibits the common residence; approval of a visa petition filed on be- (3) Documentation showing comminhalf of an alien who has attempted or gling of financial resources; conspired to enter into a marriage for (4) Birth certificate(s) of child(ren) the purpose of evading the immigration born to the petitioner and beneficiary; laws. The director will deny a petition (5) Affidavits of third parties having for immigrant visa classification filed knowledge of the bona fides of the maron behalf of any alien for whom there ital relationship (Such persons may be is substantial and probative evidence of required to testify before an immigrasuch an attempt or conspiracy, regard

tion officer as to the information conless of whether that alien received a tained in the affidavit. Affidavits must benefit through the attempt or con

be sworn to or affirmed by people who spiracy. Although it is not necessary

have personal knowledge of the marital that the alien have been convicted of, relationship. Each affidavit must conor even prosecuted for, the attempt or tain the full name and address, date conspiracy, the evidence of the attempt

and place of birth of the person making or conspiracy must be contained in the

the affidavit and his or her relationship alien's file.

to the spouses, if any. The affidavit (iii) Marriage during proceedings-gen

must contain complete information eral prohibition against approval of visa

and details explaining how the person petition. A visa petition filed on behalf

acquired his or her knowledge of the of an alien by a United States citizen

marriage. Affidavits should be supor a lawful permanent resident spouse

ported, if possible, by one or more shall not be approved if the marriage

types of documentary evidence listed

in this paragraph); or creating the relationship occurred on or after November 10, 1986, and while

(6) Any other documentation which is

relevant to establish that the marriage the alien was in exclusion, deportation,

was not entered into in order to evade or removal proceedings, or judicial proceedings relating thereto. Determina

the immigration laws of the United tion of commencement and termi

States. nation of proceedings and exemptions

(C) Decision. Any petition filed during shall be in accordance with $245.1(c)(9)

the prohibited period shall be denied, of this chapter, except that the burden

unless the petitioner establishes eligiin visa petition proceedings to estab

bility for an exemption from the genlish eligibility for the exemption in

eral prohibition. The petitioner shall

be notified in writing of the decision of $245.1(c)(9)(iii)(F) of this chapter shall

the director. rest with the petitioner.

(D) Denials. The denial of a petition (A) Request for exemption. No applica

because the marriage took place during tion or fee is required to request an ex

the prohibited period shall be without emption. The request must be made in

prejudice to the filing of a new petition writing and submitted with the Form

after the beneficiary has resided outI-130. The request must state the rea

side the United States for the required son for seeking the exemption and

period of two years following the marmust be supported by documentary evi

riage. The denial shall also be without dence establishing eligibility for the

prejudice to the consideration of a new exemption.

petition or a motion to reopen the visa (B) Evidence to establish eligibility for petition proceedings if deportation or the bona fide marriage exemption. The exclusion proceedings are terminated petitioner should submit documents after the denial other than by the benewhich establish that the marriage was ficiary's departure from the United entered into in good faith and not en- States. Furthermore, the denial shall tered into for the purpose of procuring be without prejudice to the considerthe alien's entry as an immigrant. The ation of a new petition or motion to retypes of documents the petitioner may open the visa petition proceedings, if submit include, but are not limited to: the petitioner establishes eligibility

(1) Documentation showing joint for the bona fide marriage exemption ownership of property;

contained in this part: Provided, That

a

no motion to reopen visa petition pro- (4) Derivative beneficiaries. No alien ceedings may be accepted if the ap- may be classified as an immediate relproval of the motion would result in ative as defined in section 201(b) of the the beneficiary being accorded a pri- Act unless he or she is the direct beneority date within the meaning of sec- ficiary of an approved petition for that tion 203(c) of the Act earlier than No- classification. Therefore, a child of an vember 29, 1990.

alien approved for classification as an (E) Appeals. The decision of the Board immediate relative spouse is not eligiof Immigration Appeals concerning the ble for derivative classification and denial of a relative visa petition be- must have a separate petition filed on cause the petitioner failed to establish his or her behalf. A child accomeligibility for the bona fide marriage panying or following to join a principal exemption contained in this part will alien under section 203(a)(2) of the Act constitute the single level of appellate may be included in the principal alien's review established by statute.

second preference visa petition. The (F) Priority date. A preference bene- child will be accorded second prefficiary shall not be accorded a priority erence classification and the same pridate within the meaning of section

ority date as the principal alien. How203(c) of the Act based upon any rel- ever, if the child reaches the age of ative petition filed during the prohib

twenty-one prior to the issuance of a ited period, unless an exemption con- visa to the principal alien parent, a tained in this part has been granted.

separate petition will be required. In Furthermore, a preference beneficiary

such a case, the original priority date shall not be accorded a priority date

will be retained if the subsequent petiprior to November 29, 1990, based upon

tion is filed by the same petitioner. the approval of a request for consider

Such retention of priority date will be ation for the bona fide marriage ex

accorded only to a son or daughter preemption contained in this part.

viously eligible as a derivative bene(2) Evidence for petition for a spouse. In

ficiary under second preference addition to evidence of United States

spousal petition. citizenship or lawful permanent resi

(b) Petition by widow or widower of a dence, the petitioner must also provide

United States citizen-(1) Eligibility. A evidence of the claimed relationship. A

widow or widower of a United States petition submitted on behalf of a

citizen may file a petition and be classpouse must be accompanied by a re

sified as an immediate relative under cent ADIT-style photograph of the pe

section 201(b) of the Act if: titioner, a recent ADIT-style photo

(i) He or she had been married for at graph of the beneficiary, a certificate of marriage issued by civil authorities,

least two years to a United States cit

izen. and proof of the legal termination of all previous marriages of both the peti- (NOTE: The United States citizen is not retioner and the beneficiary. However, quired to have had the status of United non-ADIT-style photographs may be States citizen for the entire two year period, accepted by the district director when but must have been a United States citizen the petitioner or beneficiary reside(s)

at the time of death.) in a country where such photographs are unavailable or cost prohibitive.

(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 citwarded to the Department of State's

izen spouse died before November 29, Processing Center. If the beneficiary is

1990; in the United States and is eligible for (iii) The alien petitioner and the citadjustment of status under section 245 izen spouse were not legally separated of the Act, the approved petition will

at the time of the citizen's death; and be retained by the Service. If the peti- (iv) The alien spouse has not remartion is denied, the petitioner will be ried. notified of the reasons for the denial (2) Evidence for petition of widow or and of the right to appeal in accord- widower. If a petition is submitted by ance with the provisions of 8 CFR 3.3. the widow or widower of a deceased

or

United States citizen, it must be accompanied by evidence of citizenship of the United States citizen and primary evidence, if available, of the relationship in the form of a marriage certificate issued by civil authorities, proof of the termination of all prior marriages of both husband and wife, and the United States citizen's death certificate issued by civil authorities. To determine the availability of primary documents, the Service will refer to the Department of State's Foreign Affairs Manual (FAM). When the FAM shows that primary documents are generally available in the country at issue but the petitioner claims that his or her document is unavailable, a letter from the appropriate registrar stating that the document is not available will be required before the Service will accept secondary evidence. Secondary evidence will be evaluated for its authenticity and credibility. Secondary evidence may include:

(i) Such evidence of the marriage and termination of prior marriages as religious documents, tribal records, census records, or affidavits; and

(ii) Such evidence of the United States citizen's death as religious documents, funeral service records, obituaries, or

affidavits. Affidavits submitted as secondary evidence pursuant to paragraphs (b)(2)(i) and (b)(2)(ii) of this section must be sworn to or affirmed by people who have personal knowledge of the event to which they attest. Each affidavit should contain the full name and address, date and place of birth of the person making the affidavit and his or her relationship, if any, to the widow or widower. Any such affidavit must contain complete information and details explaining how knowledge of the event was acquired.

(3) Decision on and disposition of petition. The approved petition will be forwarded to the Department of State's Processing Center. If the widow or widower is in the United States and is eligible for adjustment of status under section 245 of the Act, the approved petition will be retained by the Service. If the petition is denied, the widow or widower will be notified of the reasons for the denial and of the right to appeal in accordance with the provisions of 8 CFR 3.3.

(4) Derivative beneficiaries. A child of an alien widow or widower classified as an immediate relative is eligible for derivative classification as an immediate relative. Such a child may be included in the principal alien's immediate relative visa petition, and may accompany or follow to join the principal alien to the United States. Derivative benefits do not extend to an unmarried or married son or daughter of an alien widow or widower.

(c) Self-petition by spouse of abusive citizen or lawful permanent resident-(1) Eligibility—(i) Basic eligibility requirements. A spouse may file a self-petition under section 204(a)(1)(A)(iii) 204(a)(1)(B)(ii) of the Act for his or her classification as an immediate relative or as a preference immigrant if he or she:

(A) Is the spouse of a citizen or lawful permanent resident of the United States;

(B) Is eligible for immigrant classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;

(C) Is residing in the United States;

(D) Has resided in the United States with the citizen or lawful permanent resident spouse;

(E) Has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident during the marriage; or is that parent of a child who has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident during the marriage;

(F) Is a person of good moral character;

(G) Is a person whose deportation would result in extreme hardship to himself, herself, or his or her child; and

(H) Entered into the marriage to the citizen or lawful permanent resident in good faith.

(ii) Legal status of the marriage. The self-petitioning spouse must be legally married to the abuser when the petition is properly filed with the Service. A spousal self-petition must be denied if the marriage to the abuser legally ended through annulment, death, or divorce before that time. After the selfpetition has been properly filed, the legal termination of the marriage will

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