What is a Prima Facie Case for Self-Petitioner under Violence Against Women Act (“VAWA”)?

Legislative Background of the Prima Facie Case

     In 1996, Congress enacted legislation that affects the ability of most aliens to receive public assistance. In the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Congress mandated that only “qualified aliens,” as defined by statute, were eligible for public assistance. Section 501 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), amended the definition of “qualified alien” to include battered aliens, including certain aliens who file or have approved self-petitions. This “qualified alien” status is afforded not only to aliens with approved self-petitions, but also to those who file a self-petition which establishes a prima facie case for immigrant classification.

 Purpose of Establishing a Prima Facie Case

     USCIS (“Service”) adjudicates the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, and issues a notice of approval to those self-petitioning spouses and children who demonstrate eligibility. Upon approval of the self-petition, the applicant is a “qualified alien” for purposes of the PRWORA. Often, however, the initial submission does not comply with all of evidentiary burdens required for the Service to adjudicate the self-petition. In such cases, pursuant to Service regulations, self-petitioners are generally sent a request for evidence which sets forth the deficiencies of the application and allows the applicant 60 days in which to submit supplemental documentation. The applicant may be granted an additional 60 days at the discretion of the Service pursuant to current regulations.

           However, because battered aliens can be “qualified aliens” without approval of the petition, the Service must also evaluate the petition and the evidence submitted in support of the petition to determine if the alien has established a prima facie case. Although the statute affords benefits to those who establish prima facie eligibility, neither the statute nor the legislative history adequately details the requirements for establishing this eligibility. Conventional dictionary definitions are of little assistance in this regard. Without standards, determinations could be made inconsistently and with varying constancy to Congressional intent, which would be detrimental to the purpose of the statute and to the individual petitioner trying to meet it.

Requirements for Demonstrating a Prima Facie Case

    The prima facie determination will be made only after a self-petition has been filed with the Service, and the decision to issue that Notice of Prima Facie Case (Notice) rests solely with the Service. In evaluating whether a self-petitioner has established a prima facie case, the Service must have evidence of each of the required elements of the self-petition as detailed in Service regulations at § 204.2(c)(1) and (e)(1). Accordingly, self-petitioners should submit Form I-360 and credible relevant evidence in support of the petition addressing each of the statutory elements:  (1) existence of the qualifying relationship; (2) the citizenship or immigration status of the abuser; (3) the self-petitioner’s eligibility for immigrant classification; (4) residence in the United States; (5) evidence that, during the qualifying relationship, the petitioner and abuser resided together in the United for some unspecified period of time; (6) battery or extreme cruelty ; (7) good moral character; (8) extreme hardship; and (9) in the case of a self-petitioning spouse, good faith marriage. The elements and evidentiary requirements are set forth in 8 CFR § 204.2(c)(1) and (e)(1).

    If the Service determines that a petitioner has demonstrated prima facie eligibility, a Notice of Prima Facie Case will be issued. The Notice is neither a benefit nor immigration status in its own right, and an applicant cannot apply solely for a Notice of Prima Facie Case. The decision to issue such a notice rests solely with the Service. Applicants are encouraged to submit full documentation at the earliest possible time. However, bona fide candidates for self-petitioning should not postpone filing the petition because they are unable to immediately comply with all of the regulatory requirements.

    The Service’s decision to issue or not to issue a Notice will not be a factor in the adjudication of the underlying petition, nor will it constitute a binding determination of the credibility of the evidence submitted. Prima facie evidence will not always fully or completely satisfy the evidentiary burdens, and may be contradicted by evidence, documentation, or affidavits (or any other credible evidence) which come to the attention of the Service after a favorable prima facie determination has been made. Self-petitioners should be aware that such situations may result in the denial of the I-360 petition, even if a favorable prima facie determination was initially made. Conversely, the Service’s decision not to issue the Notice of Prima Facie Case is not fatal to the underlying petition.

    The prima facie evaluation will consist of an initial review of the Form I-360 and the supporting documentation. Applicants who set forth a prima facie case will receive a Notice of Prima Facie Case to document their “qualified alien” status for public benefits. The Notice is valid until the Service has adjudicated the petition. At present, the Service intends to issue the Notice with a validity period of 150 days, which exceeds the time required for adjudication in the majority of these cases. In those few cases when the Service is unable to complete the adjudication within the 150-day period, the applicant will be able to request an extension pursuant to the instructions on the Notice. Because the Notice is intended solely for the purpose of enabling petitioners to apply for public benefits within the United States, the Service will only issue the Notice to petitioners residing in the United States.

We look forward to hearing from you and discussing your case. There is no charge for an initial telephone consultation. The Law Office of Rose H. Robbins represents VAWA immigration clients from all over the United States since it involves the same Federal laws and regulations.

The Law Offices of Rose H. Robbins represents clients all over the United States and all over the world.

Call (954) 946-8130 to find out about the legal services we offer in the area of VAWA law. We do not offer a free consultation with an attorney and there is a charge for a legal consultation depending on the complexity of the matter.

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