Green Card for VAWA Self-Petitioner

Green Card for VAWA Self-Petitioner

Under the federal Violence Against Women Act (VAWA), you may be eligible to become a lawful permanent resident (get a Green Card) if you are the victim of battery or extreme cruelty committed by:

  • A U.S. citizen spouse or former spouse;
  • A U.S. citizen parent;
  • A U.S. citizen son or daughter;
  • A lawful permanent resident (LPR) spouse or former spouse; or
  • An LPR parent.

You may self-petition under VAWA by filing a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) without your abusive family member’s knowledge or consent. A person who files a VAWA self-petition is generally known as a VAWA self-petitioner. If your self-petition is approved and you meet other eligibility requirements, you may be eligible to apply to become a lawful permanent resident. For more information, see Battered Spouse, Children & Parents and VAWA Questions and Answers.

 

Eligibility for Adjustment of Status

In order to be eligible for a Green Card as a VAWA self-petitioner, you must meet the following requirements:

  • You properly file Form I-485, Application to Register Permanent Residence or Adjust Status;
  • You are physically present in the United States at the time you file your Form I-485;
  • You are eligible to receive an immigrant visa;
  • An immigrant visa is immediately available to you at the time you file your Form I-485 and when USCIS makes a final decision on your application;
  • None of the bars to adjustment of status apply to you;
  • You are admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief; and
  • You merit the favorable exercise of USCIS’ discretion.

Eligible to Receive an Immigrant Visa

You are eligible to receive an immigrant visa based on:

  • An approved VAWA self-petition (Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant);
  • A previously filed VAWA self-petition that remains pending (if ultimately approved); or
  • A VAWA self-petition (if ultimately approved) filed together with your Form I-485.

Bars to Adjust

Depending on how you entered the United States or if you committed a particular act or violation of immigration law, you may be barred from adjusting status. However, VAWA self-petitioners and beneficiaries are exempt from all of these bars to adjustment.

Grounds of Inadmissibility

To qualify for a Green Card, you must be admissible to the United States. Reasons why you may be inadmissible are called grounds of inadmissibility.

In general, USCIS can only approve your Green Card application if none of the grounds of inadmissibility apply to you.

Depending on how you entered the United States or if you committed a particular act or violation of immigration law, other grounds of inadmissibility may apply to you. If you are inadmissible, the law may allow you to apply for a waiver of inadmissibility or other form of relief in your situation. If a waiver or other form of relief is granted, USCIS may approve your application for a Green Card if you are otherwise eligible.

Whether a waiver or other form of relief is available depends on the specific inadmissibility ground(s) that applies to you and the category you are adjusting under. Eligibility requirements for waivers and other forms of relief vary.

How to Apply

If you are currently in the United States and you meet certain other requirements (such as an immigrant visa is immediately available to you), you may file Form I-485, Application to Register Permanent Residence or Adjust Status to apply for a Green Card without leaving the country.

You must have an approved Form I-360 in order to qualify for a Green Card. If a visa is immediately available to you, you do not have to wait until your Form I-360 is approved to file Form I-485.

If you are a VAWA self-petitioner seeking to adjust status as an immediate relative, you may file Form I-485 at any time because visas are always immediately available for immediate relatives. If you are a VAWA self-petitioner seeking to adjust under a family-based preference category, you may need to wait for a visa to become available.

If a visa is immediately available, you may file your Form I-485:

If you already have a pending Form I-485 based on an approved Form I-130, Petition for Alien Relative that the abusive family member filed for you, you may request to convert your Form I-485 so that it is based on your VAWA self-petition. To make this request, you must notify the USCIS field office adjudicating the pending Form I-485 that you have filed a VAWA self-petition or that you will do so within 30 days. You should also provide the USCIS field office with a safe address where we can mail all future correspondence to you.

If you do not submit evidence that you filed a VAWA self-petition within 30 days of requesting to convert your Form I-485, USCIS may make a decision on your pending application based on the original Form I-130 filed by the abusive family member. Otherwise, if USCIS approves your VAWA self-petition, your application to adjust status will be based on the VAWA self-petition instead of the original Form I-130.

What to Submit (Principal Applicant)

If you filed a Form I-360 as a VAWA self-petitioner, you are called the “principal applicant” when you file a Form I-485. If you are the principal applicant, you should submit the following documents and evidence to adjust status:

  • Form I-485, Application to Register Permanent Residence or Adjust Status;
  • Copy of the Form I-797, Approval Notice or Receipt, for your Form I-360 (unless you are filing Form I-360 together with your Form I-485);
  • Two passport-style photographs;
  • Copy of your government-issued identity document with photograph;
  • Copy of your birth certificate;
  • Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support;

Note: VAWA self-petitioners are exempt from Affidavit of Support requirements; however, you must include Form I-864W with your adjustment application;

Note: Certain forms, including Form I-485, have a filing fee. You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. Please see USCIS’ Filing Fees and Fee Schedule for more information.

Confidentiality Protections

Special confidentiality protections (described in 8 U.S.C. section 1367) apply to you as the VAWA self-petitioner. The law prohibits USCIS from denying your application based on information provided solely by your abuser and other prohibited sources. USCIS also cannot disclose any information about you to third parties, except in certain very limited circumstances.

Change of Address

USCIS will not accept requests for Change of Address submitted online, mailed to USCIS Lockbox facilities, or by telephonic requests at the National Benefits Center if you apply for adjustment as a VAWA self-petitioner.

Family Members

If you are the unmarried child under 21 years old of a VAWA-based principal applicant, you may also be eligible to apply for a Green Card as a derivative family member of an approved VAWA self-petitioner. However, you may not file as a derivative if the principal applicant is a self-petitioning parent of an abusive U.S. citizen son or daughter. For more information on derivatives and eligibility for adjustment of status, please see USCIS Policy Manual Volume 7, Part A, Chapter 6, Section C, Subsection C - Derivatives.

Eligibility Criteria for Adjustment of Status as Derivative Applicants

Each derivative applicant must file their own Green Card application and supporting documents. In order to be eligible for VAWA-based adjustment as a derivative applicant, you must meet the following requirements:

  • You properly file your Form I-485, Application to Register Permanent Residence or Adjust Status;
  • You are physically present in the United States at the time you filed your Form I-485;
  • An immigrant visa is immediately available to you;
  • None of the bars to adjustment of status apply to you;
  • You are admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief;
  • You are currently the principal applicant’s unmarried child under 21 years of age; and
  • You merit the favorable exercise of USCIS’ discretion.

Visa Availability for Derivative Applicants

If your parent is a VAWA self-petitioner and is the spouse or child of a U.S. citizen who was abusive, we consider your parent to be an immediate relative when determining whether a visa is available. You, as a derivative child, would also be considered as an immediate relative. In these cases, if there is a visa immediately available to your parent, you may submit a Form I-485 together with your parent’s Form I-485. You may also file your Form I-485 separately based on your parent’s pending or approved Form I-485.

If your parent is a VAWA self-petitioner and is the spouse of a lawful permanent resident (LPR), you, as the derivative child, will generally have the same visa preference category and priority date as your self-petitioner parent. You can file your Form I-485 when a visa available for your preference category based on your priority date.

Protections for Derivatives Who Turn 21

In certain circumstances, if you turn 21 years old, you can still be treated as a child for immigration purposes. The Child Status Protection Act (CSPA) permits certain individuals to continue to be considered as a child, even if he or she reaches the age of 21. For more information, see the Child Status Protection Act page.

What to Submit (Derivative Applicants)

If you are a derivative applicant, you should submit the following documentation and evidence to apply for a Green Card based on a VAWA self-petition:

Note: VAWA self-petitioners are exempt from Affidavit of Support requirements; however you must include Form I-864W with your adjustment application.

Note: Certain forms, including Form I-485, have a filing fee. You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. Please see USCIS’ Filing Fees and Fee Schedule for more information.

Employment Authorization and Advance Parole Documents

Generally, when you have a pending Form I-485, you may apply for employment authorization by filing Form I-765, Application for Employment Authorization.

You may also apply for an advance parole document by filing Form I-131, Application for Travel Document. An advance parole document authorizes you to appear at a port-of-entry to seek parole into the United States after temporary travel abroad. If you need to leave the United States temporarily while your Form I-485 is pending, please see the Instructions for Application for Travel Document for more information. Generally, if you have a pending Form I-485 and you leave the United States without first obtaining an advance parole document, you will have abandoned your application.

Contact one of our experienced immigration lawyers in New York at (718) 407-0871 or online at https://www.prizant-law.com if you need help with VAWA Self-Petitioner case or any other solutions to your immigration problems.

Contributed by Svetlana Prizant, an Award Winning New York Immigration Lawyer

Call or visit Prizant Law at:

Prizant Law

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