VAWA Adjustment of Status Requirements

Introduction

The Violence Against Women Act (VAWA) allows immigrants who have been physically or mentally abused to petition for a green card without the abuser’s knowledge or direct sponsorship. In order to qualify for a VAWA petition, the abuser must be a US citizen or lawful permanent resident, and the petitioner must be the abuser’s spouse, widow(er), child, or parent. The petitioner must provide immigration authorities with evidence of extreme cruelty or battery, and proof that they lived with the abuser. The petitioner will also need to exhibit good moral character, usually in the form of a clean criminal record.

Assuming you qualify for self-sponsorship under VAWA, the next question is whether you are eligible for a green card as a VAWA self-petitioner. In this case, US Citizenship and Immigration Services (USCIS) imposes seven requirements for VAWA self-petitioners:

1. You are eligible for an immigrant visa
2. An immigrant visa is available at the time of filing, and when USCIS issues a final decision on the application 
3. You are not barred from an adjustment of status
4. You are considered admissible to the United States
5. Your case merits a “favorable exercise of discretion” from USCIS
6. You have filed Form I-485, Application to Register Permanent Residence or Adjust Status
7. You were physically present in the United States when you filed Form I-485

Eligibility for an Immigrant Visa

While qualifying for an immigrant visa is often a stringent process, in this case you are assumed to be eligible as soon as you submit the proper paperwork (Form I-360, Petition for Amerasian, Widow, or Special Immigrant). Your petition will ultimately need to be approved before USCIS issues a green card, but for the time being you are free to file for an adjustment of status once the VAWA petition is submitted.

Most applicants choose to file Forms I-360 and I-485 concurrently, though you should always speak with an immigration attorney before determining a filing strategy.

Availability of Immigrant Visas

There are no restrictions on immigrant visas for immediate family members of US citizens. However, USCIS often employs quotas for family members of lawful permanent residents. If your abusive spouse, parent, or adult child has a green card, your application for adjustment of status cannot be approved until an immigrant visa is available. 

Bars to Adjustment of Status

This is perhaps the easiest box to check, as VAWA self-petitioners are exempt from the standard bars to adjustment of status. For example, where an individual who came to the US unlawfully or otherwise violated immigration law would typically be barred from receiving a green card, the same individual could receive a green card under the VAWA program. 

Inadmissibility to the United States

In order to qualify for a green card, you must be deemed admissible to the United States. There are a number of factors that can cause someone to be inadmissible, including:

• A ban on entering the US in relation to a previous removal (deportation) order
• A communicable disease of public health significance
• An incomplete vaccination record
• Committing a crime of moral turpitude
• Conviction of two or more criminal offenses that carry a combined sentence of at least five years

Generally speaking, all but two of the grounds of inadmissibility listed in INA 212(a) apply to VAWA self-applicants. The two exceptions are the prohibitions regarding public charges and entry without inspection, INA 212(a)(4) and INA 212(a)(6)(A) respectively.

If you are considered inadmissible under one of the provisions in INA 212(a), you’ll need to petition for a waiver with Form I-601, Application for Waiver of Grounds of Inadmissibility. For those who have an existing removal order from a previous deportation, you’ll also need to file Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal. Once USCIS grants a waiver or another form of relief, your VAWA self-petition for a green card may be approved.

Favorable Exercise of Discretion

This requirement is intentionally vague, as approving a VAWA petition—just like any other immigration petition—is up to the discretion of the USCIS agent assigned to the case. The agent will weigh all of the applicant’s positive factors against any negative factors when making their decision. Strong evidence of extreme cruelty or battery are often powerful enough to outweigh negative factors, but every case is unique and will require a degree of discretion. [vc_column_text]

Form I-485, Application to Register Permanent Residence or Adjust Status

Form I-485 is the primary application for an adjustment of status, but it’s not the only document that you’ll need to include in your application packet. When you mail your application to USCIS, be sure to include the following supporting items and documents:

• A copy of your Arrival/Departure Record (Form I-94)
• A copy of your birth certificate
• A copy of your government-issued ID (must include a photograph)
• A copy of your passport page or travel document with the admission or parole stamp issued by a CBP officer
• Form I-693, Report of Medical Examination and Vaccination Record
• Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, to establish that the VAWA self-petitioner is exempt from the standard Affidavit of Support requirement
• Two passport-style photographs
• If you are inadmissible, include Form I-601, Application for Waiver of Grounds of Inadmissibility
• If you have a J1 or J2 visa, include proof of compliance with the 2-year foreign residence requirement or, if you qualify for a waiver, Form I-612, Application for Waiver of the Foreign Residence Requirement
• If you have a prior removal order, include Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
• If you have A, G, or NATO nonimmigrant status, include Form I-566
• If you have an A, G, or E nonimmigrant visa, include Form I-508, Application for Waiver of Rights, Privileges, Exemptions and Immunities (note that French nationals must also include Form I-508F)
• If you have criminal charges, arrests, or convictions, include certified police reports and court records 
• If you’re in the United States on a nonimmigrant visa, include a copy of the passport page with your nonimmigrant visa 
• If you’ve already submitted your VAWA self-petition (Form I-360), include a copy of the Approval Notice or Receipt (Form I-797) 

Note that many of these forms include a filing fee. In the case of Form I-485, it’s a rather hefty filing fee of $750 – $1140. VAWA self-petitioners can request a fee waiver by submitting Form I-912. 

Physical Presence in the United States

Keep in mind that these requirements apply to VAWA self-petitioners who are already in the United States. If you are outside of the country, you’ll need to follow the traditional consular processing track instead, which will include interviews with a consular officer.

Call our Immigration team at (480) 626-2388 to discuss your case today.