VAWA Self Petition, Cancellation Of Removal & Battered Spouse Waivers Attorneys, Adjustment Of Status

Violence Against Women Act (VAWA) and Self Petition

The Violence Against Women Act (hereinafter “VAWA”) has a long history and has played an important role in assisting immigrant women who were victims of domestic violence gain lawful immigrant status through Battered Spouse Self-petition. VAWA was originally created under the Violent Crime Control and Law Enforcement Act of 1994. In 2000, VAWA was expanded and included under the Victims of Trafficking and Violence Protection Act under Title V as “Battered Immigrant Women Protection Act.” VAWA was then reauthorized under the Violence Against Women Reauthorization Act in 2006. Although the Reauthorization Act is effective for 5 years until 2010, the New York VAWA Self Petition Lawyers at Figeroux & Associates fully expect that Congress would reauthorize the Act in 2011 as it did previously in 2000 and in 2006. Should you have any questions regarding your eligibility under VAWA, please contact our New York VAWA Petition Attorneys at Figeroux & Associates, at (855) 768-8845.

VAWA Self-Petition Requirements

VAWA allows immigrant spouses (men and women) to file immigrant self-petition if they can show that they have been a victim of domestic violence or “extreme cruelty” by a U.S. citizen spouse for a U.S. permanent legal resident (LPR). Under the Victims of Trafficking and Violence Protection Act of 2000 and the Violence Against Women Reauthorization Act of 2006, children and parents of abusive U.S. citizens and legal permanent residents are also qualified under VAWA Self Petition.

In battered spouses and battered children cases, the Petitioner must demonstrate that:
* The Petitioner’s spouse was a U.S. citizen or Permanent Legal resident;
* He or she resided with the U.S. citizen or LPR spouse or parent;
* The Petitioner was battered or endured extreme cruelty during the marriage with the U.S. citizen or LPR spouse or parent;
* The marriage was a bona fide marriage and entered in good faith;
* The Petitioner has good moral character;
* The Petitioner is not inadmissible under criminal grounds for Crime Involving Moral Turpitude (CIMT) or aggravated felonies, and excludable under security grounds; and
* The removal would be an extreme hardship to the alien, the alien’s child, or the alien’s parent if he or she is removed.

Further, if the Petitioner is an unlawful resident, entered the country without inspection (EWI) or violated immigration and nationality law (such as overstaying), the Petitioner must also file an application for Cancellation of Removal for Battered Spouse.

EWI Petitioners Under VAWA Self-Petition

Prior to April 11, 2008, the USCIS was inconsistent with granting VAWA Self Petition adjustment of status to Petitioners who entered the country without inspection (EWI). INA Section 212(a)(2) requires the applicant of adjustment of status to be an admissible alien. In addition, INA Section 212(a)(6)(A) does not allow an alien that entered without inspection to adjust status to become a U.S. permanent resident. Therefore, there are 2 provisions under the ACT that prohibits an EWI from the adjustment of status. However, INA Section 212(a)(6)(A)(ii) provides a waiver for inadmissibility based on the Victims of Trafficking and Violence Protection Act, Public Law 106-386. Thus, Public Law 106-386 provides a waiver for at least 212(a)(6)(A) but does not mention or refer to INA Section 212(a)(2). As such, there is a conflict of law and many Adjudicating Officers were refusing VAWA Self Petition for EWI Applicants.

To resolve this apparent conflict in the law, USCIS’ Associate Director, Mr. Michael Aytes, drafted a detailed memo regarding Visa Self Petition for EWI applicants. Please click here for the full memo. In that memo, Mr. Aytes directed field Directors and Adjudicating Officer to accept INA Section 212(a)(6)(A)(ii) as it is applicable to both INA Section 212(a)(6)(A) and Section 212(a)(2). As such, all EWI applicants for VAWA Petitions should be approved if all other requirements are met. In addition, the USCIS will accept Motion to Reopen and Motion to Reconsider, at no cost, to Petitioners whose previous applications were denied solely on the basis that they are EWI. If you are an alien who entered the country without documents, illegally or overstayed, please contact the New York EWI VAWA Self Petition Attorneys Figeroux & Associates and the U.S. VAWA Battered Spouse Petition Lawyers at Figeroux & Associates.

Battered Spouse Waivers

The Victims of Trafficking and Violence Protection Act provides several waivers that are available for VAWA Self Petitioners. They are as follow:

Cancellation of Removal (In Removal Proceedings Only) – If all requirements under VAWA Self Petitioner is met, the Petitioner may Apply for Cancellation of Removal and apply for Self Petition and Adjustment of Status with the Immigration Court.

Reentry After Previously Removed – Waiver of the ground of inadmissibility for reentering the U.S. without inspection following a one-year period of unlawful presence or after having been ordered removed is available for Petitioners who can establish a connection between the abuse they suffered and their departure or reentry.
Public Charge Waiver – Petitioner who received public assistance under 8 U.S.C. § 1641© (which permits VAWA beneficiaries to obtain cash and other government assistance in connection with their escape from domestic violence) may not be considered in public charge when filing for VAWA Self Petition.

Waiver of Petition to Remove Conditions of Residence – Generally, conditional green cards are given to spouses of U.S. citizens and LPR’s whose marriage has been less than 3 years at the time of filing the family-based immigrant petition for a period of 2 years. After the 2 years period, Applicants are required to jointly file a Petition to remove Conditions of Residence, Form I-751. VAWA Petition removes the I-751 Petition requirements altogether.

Waivers of Previous Criminal Convictions:
Waiver of the ground of deportability for having a conviction for a crime of domestic violence or for violation of a protective order, if the Petitioner can show that he or she was not the primary perpetrator of violence in the relationship. In addition, the Petitioner must also show that she was acting in self-defense or that the crime did not result in serious bodily injury and was connected to the abuse that the immigrant suffered.
Waivers for certain criminal grounds under INA § 212(h) and fraud or misrepresentation under INA § 212(I), and health grounds under INA § 212(g).

For all other questions relating VAWA Self Petition, Cancellation of Removal, and available waivers, please contact the New York VAWA Petition Attorneys and Waiver Lawyers at Figeroux & Associates. You are encouraged to call and ask detailed questions regarding your qualifications under VAWA, call (855) 768-8845.