CHAPTER 4 THE VAWA SELF-PETITIONING PROCESS Contents
VAWA Manual
February 2002
CHAPTER 4
THE VAWA SELF-PETITIONING PROCESS
Contents
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
4.16
4.17
4.18
4.19
4.20
4.21
4.22
4.23
4.24
4.25
4.26
4.27
Introduction to the Self-Petitioning Process....................................................................... 4-2
Completing the Self-Petition.............................................................................................. 4-2
Filling out the I-360............................................................................................................ 4-2
Documenting the Requirements for the I-360.................................................................... 4-4
A Detailed Cover Letter with an Index of the Documentation .......................................... 4-5
Notice of Entry of Appearance by the Attorney or BIA-Accredited Representative......... 4-6
INS Filing Fee Amount ...................................................................................................... 4-7
The Self-Petitioner’s Detailed Declaration or Affidavit .................................................... 4-7
Proof that the Abuser is (or was) a Lawful Permanent Resident or United States Citizen 4-8
Proof that the Self-Petitioner is (or was) Married to the LPR or USC............................... 4-9
Proof that the Self-Petitioner Suffered Battery or Extreme Cruelty ................................ 4-10
Proof that the Marriage or Intended Marriage was in Good Faith ................................... 4-11
Proof that the Self-Petitioner Resided with the Abuser ................................................... 4-12
Proof that the Self-Petitioner has Good Moral Character ................................................ 4-12
Evidence of the Self-Petitioner’s Current Residence ....................................................... 4-13
Documenting Eligibility for a VAWA Self-Petition for a Child ..................................... 4-14
Filing the completed I-360 packet.................................................................................... 4-16
Prima Facie Eligibility ..................................................................................................... 4-17
Notice of Action/Request for Evidence ........................................................................... 4-18
Deferred Action................................................................................................................ 4-18
Preference Categories for Family-Based Immigration..................................................... 4-19
How the Preference System Works.................................................................................. 4-19
Using the State Department Visa Bulletin to Make an Estimate of when
Your Client can Immigrate............................................................................................... 4-20
Employment Authorization .............................................................................................. 4-22
Adjustment of Status ........................................................................................................ 4-23
Notice of Intent to Deny................................................................................................... 4-24
Special Concerns for Advocates who are not Attorneys or Accredited Representatives. 4-25
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§ 4.1 INTRODUCTION TO THE SELF-PETITIONING PROCESS
Obtaining lawful permanent residence through VAWA self-petitioning is a two-step
process: First, the abused spouse or child files the self-petition by mail to the INS. If the petition
is approved, the self-petitioner waits for a visa to become available. Second, the approved selfpetitioner applies for adjustment of status to get a “greencard,” or lawful permanent resident
status. This chapter will discuss the VAWA self-petitioning process. Chapter 5, “Adjustment of
Status” and Chapter 8, “Consular Processing” will discuss how to obtain lawful permanent
residency based on an approved self-petition. See also Chapter 2, “Initial Discussions with
Clients” for a detailed discussion of working with clients in the process.
§ 4.2 COMPLETING THE SELF-PETITION
The VAWA self-petition, whether from a self-petitioner living in the U.S. or abroad, is
submitted on Form I-360 (although the form may change in the near future). The self-petitioner
must also submit documentation showing how she meets the VAWA requirements. This section
discusses both of these steps.
§ 4.3 FILLING OUT THE I-360
The first step in the self-petitioning process is to complete the I-360 petition. The
petition form is called a “Petition for Amerasian, Widow(er), or Special Immigrant.” (See blank
Form I-360 in Appendix [ ].) This petition is available at local INS offices, by calling the INS at
1-800-870-3676, or by downloading it from the INS website at www.ins.gov. It is also
acceptable to use photocopies of the Form I-360 provided that the pages are printed exactly the
same way as the official form.1 The petition must be completed in black ink or on a typewriter.
(See a sample completed Form I-360 in Appendix [ ].)
PRACTICE TIP: Using the Correct INS Forms and Filing Fee Amounts
Forms sometimes contain incomplete or out of date information, especially about petition
fees. To check what the correct fee us for any petition and to get the most current information on
forms is from the government website for the INS, which is found at www.ins.gov. You can also
call the INS at their new national customer service number for current fee information at 1-800375-5283.
There will be some sections of the Form I-360 that are not relevant for a VAWA selfpetition because this form is used for a number of different types of immigration petitions.
However, do NOT leave any space blank. If there are sections that do not apply to the selfpetitioner, write “N/A” or “not applicable” if the question doesn’t apply. Where the answer to a
question is “none,” write “none” in that section.
1
8 § CFR 299.2-4. Every part of the official form must be copied onto the photocopy or laser printed form.
Furthermore, the forms must use black ink that will not fade or “feather” within 20 years.
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Although the Form I-360 is fairly straight-forward, several points can cause confusion for
self-petitioners. These include:
Part 1: “Information about person or organization filing this petition”
This information is what the INS will use to contact or correspond with the self-petitioner. The
self-petitioner does not have to include her own address on the I-360, but can instead list the
name of a friend, or your agency, in the c/o space, along with that person's address. This gives
the INS an alternative address to send correspondence, and therefore helps prevent the selfpetitioner's spouse or parent from discovering that she has filed a self-petition.
Part 2: “Classification requested”
Self-petitioners should check the appropriate classification, either (i) or (j).
Part 3: “Information about the person this petition is for”
If the person entered legally, he or she probably entered with a nonimmigrant visa and obtained
an I-94 card at the border upon entry. The I-94 card is a white cardboard card marked I-94. It
may be loose or stapled to the passport. You must read the card to answer the bottom part of
Part 3. It should indicate the date of arrival, the current nonimmigrant status and whether it is
current or expired.
If the person entered illegally, write “N/A” for the question about the I-94 number and
nonimmigrant status.
Part 4: “Processing Information”
The question about U.S. Consulates is applicable only to self-petitioners who are outside of the
United States. In those cases, the visa will be processed by the U.S. consulate with jurisdiction
(legal control) over the area where the self-petitioner resides.2
A petition for adjustment of status can be attached if the self-petitioner is or was married to a US
citizen or has a current priority date.
Parts 5 and 6: Regarding Amerasians and Special Immigrant Juvenile Court Dependent
These parts are not applicable to self-petitioners and should be checked “N/A” in all sections.
2
The INS will send the petition to whatever consulate is named on the application. However, the consulate will not
accept the petition unless it believes it has jurisdiction. The INS will forward the visa petition to a consulate, which
it believes is the right one, or notify you that another consulate must be found.
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Part 7: “Complete only if filing as a Widow/Widower, a Self-petitioning Spouse of an Abuser, or
as a Self-petitioning Child of an Abuser”
Complete this section as instructed.
Part 8: “Information about the spouse and children of the person this petition is for.”
Make sure to include all children, including children born out of wedlock, adopted children,
stepchildren and even children who do not plan to immigrate. It is important to include children
who do not plan to immigrate currently because it may make the process easier for them if they
decide to immigrate in the future. It will be more difficult for children who were not listed in the
petition to immigrate later because the INS might doubt they are legally the applicant’s children.
§ 4.4 DOCUMENTING THE REQUIREMENTS FOR THE I-360
Attached to the completed Form I-360, the self-petitioner must also send documentation
showing how she meets each of the VAWA requirements. However, VAWA recognizes that
victims of domestic violence may face greater than normal obstacles to getting documentation.
Therefore, although the self-petitioner is required to prove that she meets the VAWA
requirements, the INS is required to accept “any credible evidence” as proof. This section will
discuss ideas for obtaining and preparing documents to prove the requirements for a self-petition
and what to do when documentation is unavailable.
Using the Any Credible Evidence Standard to Document the Self-Petition
Sometimes the client and the advocate cannot obtain evidence to establish a crucial
element of the self-petition, such as evidence of the abuser’s immigration status. This is
especially likely where the abuser has controlled the family records and not allowed the victim to
access to those records. In such situations, the INS will attempt to verify the missing information
from its records.3 The cover letter to the application should indicate what documentation is
missing, describe the self-petitioner’s attempts made to obtain the documentation, and indicate
that those attempts were unsuccessful. The cover letter should also include all information in the
self-petitioner’s possession that would assist the INS in its verification efforts. For example, if
the self-petition cannot obtain documentation of the abuser’s immigration status, he or she
should provide as much information about the abuser as possible, such as his or her date of birth,
social security number, address, driver’s license number and nationality (if not a U.S. citizen).
A self-petition must contain evidence to support each of the eligibility requirements, or
“elements.” Advocates should try to obtain primary source documents, such as birth certificates,
naturalization certificates, and permanent resident cards.4 It is important to remember, however,
that there is a special evidentiary standard for VAWA self-petitions and for certain other types of
petitions related to abused immigrants. This standard is called the “any credible evidence
3
4
8 CFR § 204.1(g)(3).
8 CFR § 204.2(c)(2)(I) [spouses and intended spouses]; 8 CFR § 204.2(d)(2)(i) [children].
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standard.”5 Under it, the INS must consider all credible evidence submitted with the petition
before reaching a conclusion.6 Thus, if primary evidence is not available, secondary evidence,
such as declarations or affidavits, is acceptable to make out the elements of the claim. Advocates
using secondary evidence, however, should document their attempts to obtain primary source
evidence and explain why they were unable to do so.
PRACTICE TIP: Community cooperation in gathering documents
A strong advocacy team that includes immigration advocates, domestic violence
counselors and shelter staff is key in preparing VAWA cases. If possible, the work should
always include the involvement of a mental health counselor. They can help the self-petitioner
develop her story for her affidavit, identify others who can provide affidavits, help collect
documents and write corroborating affidavits about the abuse. You should work with them to
develop safety plans that include collecting and protecting essential documents. Similarly, police
departments, district attorneys, courts and hospitals are important sources of documents,
including reports of domestic violence. These sorts of professionals can expedite the process of
getting those reports to domestic violence victims. See Appendix [ ] for a list of important
documents and tips for working with immigrant victims of domestic violence. This list may be
given to government and community agencies to help them identify and prepare necessary
documentation.
The self-petition packet should be paginated consecutively and should contain the
information listed below.7 If the self-petitioner or advocate cannot obtain documentation to
make out each requirement, she should request verification by the INS, as described in the
preceding subsection.
§ 4.5 A DETAILED COVER LETTER WITH AN INDEX OF THE DOCUMENTATION
A detailed cover letter with an index of the supporting documentation will help the INS
examiner more clearly see how the self-petitioner qualifies for VAWA. See Appendix [ ] for a
sample cover letter. The cover letter should provide a “roadmap” for the INS examiner by
describing how the self-petitioner satisfies each requirement and how the evidence and
documentation prove it. In addition, an index or table of contents should present the
documentation in an organized manner by listing each of the VAWA requirements separately
and listing under each of them the documents that prove that the requirement is met. It should
list each document contained in the petition and the page at which it appears.
5
INA § 204(a)(1)(J).
Id.
7
See, Gail Pendleton and Ann Block, Applications for Immigration Status under the Violence Against Women Act,
2001 AILA Annual Meeting Materials, at Volume II, page 436 (also available from the National Lawyers’ Guild
Website), at 447-448; Lauren Gilbert, Family Violence and U.S. Immigration Law: New Developments,
Immigration Briefings (March 2001).
6
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1.
What to Do if a Petition Was Already Filed for the Self-Petitioner
In some cases the abuser may have filed an immediate relative or family preference visa
petition, on Form I-130, for the abused spouse or child. In this case, the self-petitioner may be
able to “recapture” the priority date of the previously filed petition, even if the I-130 petition was
subsequently withdrawn by the abuser or if the application was denied or its approval revoked.8
In addition, if a self-petitioner has an I-130/I-485 relative visa petition/adjustment of status
application pending, the self-petitioner or her advocate may either proceed with the adjustment
based on the I-130 or ask the INS to withhold adjudication of the I-485 pending resolution of the
self-petition.9
If an I-130 Petition for Alien Relative was previously filed by any qualifying relative on
the self-petitioner’s behalf, the cover letter should reference this fact and, if possible, include
documents such as an approval notice, to show the date on which the I-130 petition was filed.
The cover letter should also indicate the outcome or status of that I-130. The self-petitioner may
therefore be able to “recapture” that priority date and be eligible to adjust status at a sooner time.
(See Chapter 5 for more information on Adjustment of Status.)
2.
What to Do if the Abused Spouse is Already a Conditional Permanent Resident
In other cases, an abused spouse may be in conditional permanent resident status, based
upon an approved I-130 filed by the abuser. In this case he or she should probably file an I-751
petition for a waiver of the requirement of the jointly-filed petition to remove the condition,
rather than filing a new I-360 self-petition. Please see Chapter 9 for more information on
conditional permanent residence and the waivers of the joint petition requirements.
§ 4.6 NOTICE OF ENTRY OF APPEARANCE BY
THE ATTORNEY OR BIA-ACCREDITED REPRESENTATIVE
If the self-petitioner is being assisted by an attorney or a BIA-accredited representative,
the attorney or BIA-accredited representative should submit a Form G-28 signed by the selfpetitioner and the attorney/representative. The form can be downloaded from the INS website at
www.ins.gov. The G-28 form authorizes the attorney/representative to represent the client in
front of the INS. See Appendix [ ] for a blank Form G-28.
8
Alenikoff, Executive Associate Commissioner, Office of Programs, INS Mem. HQ 204-P, April 16, 1996, at 2-3
[reprinted as Appendix II, 73 Interpreter Releases 737, May 24, 1996].
9
Id. at 3.
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§ 4.7 INS FILING FEE AMOUNT
The petition fee should be paid by check10 or money order, made payable to the INS.
The filing fee is currently $130.00.11 The self-petitioner’s name and A number (if she has one)
should be clearly printed on the check or money order.
Requesting a Fee Waiver
A self-petitioner who cannot afford the filing fee can apply for a fee waiver.12 The fee
waiver request must be in writing and included with the application. More information and
model fee waiver request is included at Appendix [ ]. The fee waiver request should list the selfpetitioner’s assets and income (if any) and expenses. If possible, also provide evidence of the
self-petitioner’s income (which could include the previous year’s tax returns, pay stubs or
documentation submitted with an application for public assistance), assets and expenses with the
fee waiver request.
WARNING: An application is not considered properly filed until it is received by the Vermont
Service Center with the correct fee or until the fee waiver is granted. Therefore, requesting such
a fee waiver MAY cause a delay in the process. Advocates should also be aware that a request
for a fee waiver may raise questions at the time of adjustment of status consular processing
because of the public charge inadmissibility ground.
§ 4.8 THE SELF-PETITIONER’S DETAILED DECLARATION OR AFFIDAVIT
The self-petitioner’s declaration or affidavit may be the most critical document submitted
in support of the application. If possible, every requirement of the self-petition should be
addressed in the declaration. Therefore, it should include the self-petitioner’s personal
knowledge on each requirement of the claim: good moral character, residence, good faith
marriage (or other qualifying relationship to the abuser), the abuser’s immigration status, and the
nature of the battery or extreme cruelty. See Appendix [ ] for a sample self-petitioner
declaration.
The declaration should concentrate on the self-petitioner’s detailed description of the
abuse he or she suffered. It should describe this abuse in detail and should be organized so as to
make the events clear to the reader. The declaration should also include the self-petitioner’s
statement that she is of good moral character. If there is some issue as to good moral character,
the self-petitioner should include an explanation of that issue.
For a more detailed discussion on helping your client to draft her declaration, see Chapter
2.
10
Payment by check can be useful because when the INS cashes the check, the applicant will have the cancelled
check as evidence that the application and fee were received by the INS.
11
8 CFR § 103.7(b).
12
8 CFR § 103.7(c).
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§ 4.9 PROOF THAT THE ABUSER IS (OR WAS) A LAWFUL PERMANENT
RESIDENT OR UNITED STATES CITIZEN
The VAWA self-petition form asks for proof of the abuser’s lawful immigration status or
U.S. citizenship. Where the abuser is a United States citizen (USC) by birth, that status is proved
by the abuser’s birth certificate showing birth within the United States or its possessions, or by a
certification of citizenship or a birth certificate showing birth abroad to two USC parents or to
one USC who meets the residential requirements necessary to convey citizenship upon his or her
children.13 The status of an abuser who is a naturalized USC is shown by the abuser’s
naturalization certificate.
For information regarding a person born in the United States, the self-petitioner can contact
the state or county office of vital statistics (often the county clerk) to obtain a copy of the
abuser’s birth certificate. An internet website -- www.vitalcheck.com -- lists many local offices
that provide vital statistics throughout the U.S. Sympathetic friends or relatives can also help the
applicant in locating the information.
The status of an abuser who is a lawful permanent resident (LPR) is shown by the abuser’s
permanent resident card. If the abuser is an LPR, the self-petitioner can try to find the abuser’s
"A" number on his lawful permanent resident card ("green card").
PRACTICE TIP: What to do if documentation of the spouse’s USC or LPR status cannot
be obtained
If the applicant is unable to comply, INS will attempt to verify an abuser’s status through its
computer records.14 However, this process will delay processing of the self-petition, and if the
search fails, it may lead to a denial. Most likely, INS will not have records from U.S.-born
individuals who have never filed any paperwork with the Service. Therefore, it is in the selfpetitioner's best interest to prove the abuser's legal status or to provide secondary evidence such
as declarations, affidavits, school records, medical records, etc. to try to prove his status.
13
See, INA § 301 et seq., defining United States citizens at birth.
14
8 CFR § 204.2(c)(2) (spouse), 8 CFR § 204.2(e)(2)(child).
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PRACTICE TIP: What to do if the abuser lost his status
If the abuser lost his citizenship or his lawful permanent resident status because of an
incident of domestic violence, the self-petition should include a record of the removal,
citizenship revocation, or denaturalization proceedings that indicate the loss of status including
the date on which status was lost as well as the connection between the loss of status and the
incident of domestic violence. The self-petitioner should also provide affidavits and other
evidence showing that the loss of status was due to an incident of domestic violence. This does
not mean the abuser must have been deported for a domestic violence incident or conviction,
only that the deportation must flow from an incident of domestic violence. The self-petition
must also be filed within two years following the loss of status.15
§ 4.10 PROOF THAT THE SELF-PETITIONER IS (OR WAS) MARRIED
TO THE LPR OR USC
The self-petition should include a copy of the marriage certificate of the marriage
between the self-petitioner and the abuser.16 If either spouse had a prior marriage, the selfpetitioner should submit divorce or death certificates to prove the legal termination of the prior
marriage(s).17
1.
Divorce or Death of the Abuser
If the marriage has terminated, the self-petition application must be filed within two years
after divorce or the death of the abuser.18 Only the spouses of abusive USCs can apply after the
death of the abuser. The self-petitioner must submit documentation of the death or termination
to establish the correct filing date.
If the marriage was terminated by divorce, a final divorce decree must be provided. The
INS will not require that the divorce decree specifically state that the termination of the marriage
was due to domestic violence.”19 However, the self-petitioner must “demonstrate that the
battering or extreme cruelty led to or caused the divorce.”20 Details in the self-petitioner’s own
declaration, affidavits and letters from witnesses, and other evidence submitted to meet the core
eligibility requirements for VAWA may be sufficient to demonstrate the "connection" between
the abuse the self-petitioner suffered and the legal termination of the marriage.21
15
INA § 204(a)(1)(iii)(II)(CC)(ccc).
8 CFR § 204.2(c)(2)(ii).
17
Id.
18
INA § 204(a)(ii)(II)(CC).
19
Pearson, Executive Associate Commissioner, Office of Field Operations, INS Mem. HQADN/70/8, January 2,
2002 [reprinted as Appendix II, 79 Interpreter Releases 131, January 21, 2002].
20
Id.
21
Id.
16
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If the abuser was a USC who died within two years of the filing of the self-petition, the
self-petitioner should submit the abuser’s death certificate.
2.
“Intended Spouses”
If the abuser was a bigamist or polygamist (was actually married to someone else at the
time that he and the self-petitioner married), the self-petitioner should show her good faith belief
that the abuser was free to marry. This would include a statement in her affidavit that she had no
prior knowledge of her spouse’s existing marriage and proof that she believed she was legally
married to the abuser because a marriage ceremony was performed. She will still need to
provide a marriage certificate.
PRACTICE TIP: Obtaining Documents in the United States to Show Family Relationship
To obtain a certified copy of a U.S. birth, marriage or divorce certificate, contact the
appropriate state or county agency where the event took place. Find out the correct fee, if any;
whether the fee must be paid by money order instead of personal check; and whether the person
needs to sign a release form. You may also want to find out how long it will take to get the
documents and, if necessary, if there is a way to obtain the documents more quickly.
An excellent resource guide is Where to Find Vital Records. It provides information on
how to get records from all 50 states, and the information is updated each year. It is available
from any federal government bookstore for $2.50, or it may be ordered from the Government
Printing Office website at www.gpo.gov.
§ 4.11 PROOF THAT THE SELF-PETITIONER SUFFERED BATTERY
OR EXTREME CRUELTY
A self-petitioning spouse must show that the abuse occurred during the marriage. The
most important evidence of domestic violence is the self-petitioner's own affidavit. It should be
very detailed in its descriptions of the abuse, including, if possible, the date that the abuse began,
a description of each incident of physical injury, verbal threats, accounts of other cruelty,
attempts to leave or seek help, difficulty in leaving, and feelings about the abuse.
The self-petitioning case will be strengthened by other proof of abuse. The following is a
non-exhaustive list of possible evidence of the battery or extreme cruelty that the self-petitioner
suffered:
•
•
•
•
The self-petitioner’s own detailed declaration;
Copies of temporary and final protective orders from a court;
Shelter records and other evidence that the victim sought shelter or protection;
Counseling records and reports;
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•
•
•
•
•
•
•
Medical records documenting the abuse;
Photographs of a visibly injured self-petitioner or property damage, supported by
affidavits;
Evidence of torn clothing, broken furniture, or photographs of injuries;
Affidavits (a notarized statement), declarations (a statement signed under penalty of
perjury), or letters from witnesses such as friends, relatives or neighbors which support
the client's statements, or from shelter workers, police officers, counselors, social
workers, medical workers, clergy, and experts on domestic violence.
Police reports, police records, criminal court records, complaints;
Letters from clergy to whom the abuse was reported; and
School records reflecting the abuse.22
PRACTICE TIP: Proving Extreme Cruelty
If the abuse suffered by the self-petitioner did not include any physical abuse, but
constituted extreme cruelty, it’s critically important that the extreme cruelty that the selfpetitioner suffered and felt be well-documented. The INS will look for subjective details as to
how the self-petitioner felt about the way her abuser treated her in addition to objective details of
the abuser’s actions or behavior. A corroborating affidavit from a domestic violence counselor is
essential for extreme cruelty cases and is extremely helpful in any case.
§ 4.12 PROOF THAT THE MARRIAGE OR INTENDED MARRIAGE
WAS IN GOOD FAITH
“Good faith” means that the self-petitioner married the abuser for the principal purpose of
sharing a life together and not solely to obtain an immigration benefit. The following is a nonexhaustive list of possible evidence of the self-petitioner’s good faith intent:
•
•
•
•
•
•
•
22
Birth certificates of children born of the marriage;
Deeds to property or leases showing both spouses’ names;
Bank accounts in both spouses’ names or showing one spouse as the beneficiary of the
other;
Vehicle registration in both spouses’ names;
Wills indicating that the parties are married;
Credit card, utility, and other bills in both spouses’ names;
Jointly filed income tax returns;
8 CFR § 204.2(c)(2)(iv) [self-petitioning spouses]; 8 CFR § 204.2(e)(2)(iv) [self-petitioning children].
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•
•
•
•
•
Insurance policies showing one spouse as the beneficiary of the other;
Evidence of courtship, such as letters and photographs of the couple;
Evidence of the marriage ceremony, such as photographs and invitations;
Declarations from relatives or friends; and
The self-petitioner’s own detailed declaration.23
§ 4.13 PROOF THAT THE SELF-PETITIONER RESIDED WITH THE ABUSER
A self-petitioner should submit any available record showing that she resides or resided
at the same place as her spouse. The records do not have to show that the residence was in the
U.S., nor that the residence is current. This sort of evidence can include:
•
•
•
•
•
•
•
•
•
•
•
Letters addressed to the abuser and the self-petitioner, together or in separate letters, at
the same address;
Bills in both names;
Property deeds, lease agreements or rent receipts;
Insurance policies;
Employment records;
Children’s birth certificates;
School or medical records;
Joint checking accounts;
Utility or other bills;
Tax returns; and
The self-petitioner’s own declaration.24
Affidavits, declarations or letters from family members, neighbors, friends or other people who
know they live together may be sufficient if other records are not available.
§ 4.14 PROOF THAT THE SELF-PETITIONER HAS GOOD MORAL CHARACTER
Self-petitioners who are 14 years of age and older must provide a copy of police
clearance letters from jurisdictions (including other countries) where they have resided for six
months or more during the three year period preceding the filing of the self-petition.
The self-petitioner’s own declaration is crucial in establishing good moral character. If
there are no criminal convictions or other acts that would establish a statutory or discretionary
bar to good moral character, then the self-petitioner may simply state in the declaration that he or
she has never been arrested. A letter or declaration from friends, clergy, or employers attesting
to the self-petitioner’s good moral character is useful if there is a problem with good moral
character. If there is a statutory or discretionary bar to establishing good moral character, the
23
24
See, 8 CFR § 204.2(c)(2)(vii).
8 CFR § 204.2(c)(2)(iii) [self-petitioning spouses]; 8 CFR § 204.2(e)(w)(iii) [self-petitioning children].
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self-petitioner may use the declaration to explain the circumstances and connection between the
offense and the abuse, as well as discuss the positive aspects of her good moral character.
If the self-petitioner has done an act or has a conviction that would prevent her from
establishing good moral character under INA § 101(f), there might still be an exception for it
under INA §§ 212 or 237 (see Chapter 6). If that is the case, then evidence should be submitted
to establish that the act or conviction would be waivable and that the act or conviction was
connected to the alien’s having been battered or subjected to extreme cruelty. The self-petitioner
should explain in her declaration how the problems are related to her experience of domestic
violence. The self-petition should also include affidavits from responsible people who can attest
to the self-petitioner's otherwise good moral character. If the self-petitioner has criminal charges
or convictions, she must submit court documents showing the disposition of the case.
WARNING: Make sure to ask your client if she has EVER been arrested or convicted for any
crime at any time. If your client has any criminal arrests or convictions, it is important to consult
an immigration attorney or BIA-accredited representative for help with the case. In addition to
making a self-petitioner ineligible for VAWA, some crimes can make a self-petitioner deportable
and/or permanently barred from the United States.
On the other hand, some self-petitioners will be able to qualify for VAWA despite having
a criminal record. For example, if the self-petitioner has done an act or has a conviction that
would prevent him or her from establishing good moral character under INA §101(f) but for
which there might be an exception under the VAWA 2000 amendments, then she should submit
evidence to establish that the act or conviction would be waivable under INA §§ 212 or 237 and
that the act or conviction was connected to the alien’s having been battered or subjected to
extreme cruelty. This is a complicated legal argument and also should be referred to any
immigration attorney or accredited-representative who has experience in these matters. See
Chapter 6.
§ 4.15 EVIDENCE OF THE SELF-PETITIONER’S CURRENT RESIDENCE
The self-petitioner should submit proof of her current residence in the United States or, if
the self-petitioner lives outside of the United States, that the abuser is an employee of the U.S.
government, a member of the uniformed services, or has subjected the self-petitioner to battery
or cruel treatment in the United States. If the self-petitioner is currently residing in the United
States, that residence can be shown through:
•
•
•
•
•
•
Lease agreements or rental receipts;
Shelter records documenting self-petitioner’s presence;
Bills, receipts, medical records, or school records showing the self-petitioner’s presence
in the United States;
Employment records;
Letters or declarations from relatives, friends or neighbors
The self-petitioner’s own declaration.
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§ 4.16 DOCUMENTING ELIGIBILITY FOR A VAWA SELF-PETITION
FOR A CHILD
The self-petitioning child must provide documentation showing the parent-child
relationship with the abuser. For a self-petitioning child born in wedlock, the child’s birth
certificate should be submitted, showing the abuser as a parent.25
If the self-petitioning child was born out of wedlock and was abused by the father, then
evidence must be submitted to show that either (1) the child was legitimated prior to the age of
18 and was in the custody of the legitimating parents at the time of legitimation, or (2) the father
and child had a bona fide parent-child relationship.26 Examples of evidence to show the father
and child had a bona fide parent-child relationship include evidence of payment of child support
and statements from the self-petitioner, his or her mother, and other relatives or witnesses
concerning the relationship between the father and child.27
If the child is adopted, copies of the legal adoption before the child turned 16 as well as
documentation of two years’ physical and legal custody must be submitted.
If the child is the stepchild of the abuser, then the child’s birth certificate and the
marriage certificate of the child’s parent and the stepparent, showing that the marriage took place
before the stepchild reached 18 years of age, and evidence of legal termination or all prior
marriages of either parent, if any, should be submitted.28
PRACTICE TIP: Making Proper Copies of Official, Government Documents
A document from a government agency, whether from the United States or another country,
will probably be a photocopy of the document you requested, with an original certification stamp
or signature from the government office. For immigration purposes, this is an “original”
document. There are two things to remember about original documents:
1. Do not submit original documents to the INS unless you are told to do so.
Instead of sending the original document, the INS generally permits the filing of photocopies
instead of original documents with petitions, and the applicant does not need to individually
certify the copies.29 The INS views the signing of the petition a certification under penalty or
perjury that all evidence submitted with a petition is true and correct. It is important to make
sure that legible copies are submitted with the petition
25
8 CFR § 204.2(e)(2)(ii).
Id.
27
8 CFR § 204.2(d)(iii).
28
8 CFR § 204.2(e)(2)(ii).
29
8 CFR § 204.1(f)(2).
26
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NOTE: If originals are submitted instead of copies, the INS will not return the originals to the
applicant.
2. Keep the original document in a safe place and be prepared to show it to the INS upon
request. In addition, you or the client must bring the original document to any
interview that has to do with the case.
If at all possible, return all original documents to the client and ask her to keep them safe.
PRACTICE TIP: Making Certified Translations of Documents
All documents that are not in English must be submitted to the INS with a full English
translation made by a person who is competent to translate. Summary translations are no longer
accepted. All foreign language documents must be accompanied with a full English
translation.30
Anyone (other than the applicant or a close relative of the applicant) who is competent to
translate may make the translation. It does not have to be an attorney, certified representative or
notary public.
The translator must certify the translation. To do that, the translator should write at the
bottom of the last page of the English translation, “I certify under penalty of perjury that I am
competent to translate from [the original language] to English and that the above is a correct and
true translation to the best of my knowledge and belief.” The translator should sign and date this
statement and should include his or her typed name, address and phone number.
KEEP A COPY! The INS or the Post Office could lose your package. Never submit any
documents to the INS without making a copy for your files. If you are helping someone that you
will not represent, make sure that the applicant keeps a copy. Keep the receipt from the certified
mail/return receipt requested mailing with the copy. If there is ever a problem, this will be the
proof of filing and priority date. Furthermore, because she will later go to an INS interview,
make sure the self-petitioner retains a copy of the complete petition.
30
8 CFR § 103.2(b)(3).
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§ 4.17 FILING THE COMPLETED I-360 PACKET
All VAWA self-petitioners are adjudicated by specially trained INS officers at the
Vermont Service Center.31 The self-petition must be mailed to:
Immigration and Naturalization Service
Vermont Service Center
75 Lower Weldon Street
St. Albans, VT 05479-9589
Mark on the front of the envelope with the self-petition (and all correspondence
with the INS) "VAWA" in large red letters. Writing “VAWA” on the envelope will make it
easier for the INS to direct the self-petition application to the INS examiners who are specially
trained to adjudicate I-360s. Mail the petition certified mail, return receipt requested.
PRACTICE TIP: Clients in Removal Proceedings or Already Ordered Removed
Caveat: If you have a client in removal proceedings, an attorney or BIA-accredited
representative must represent him or her.
If the client is in removal proceedings and appears eligible to self-petition under VAWA,
the representative should file the self-petition with the Vermont Service Center as soon as
possible. The representative should also talk with the INS Associate District Counsel handling
the case about the possibility of ending or postponing the removal proceedings if it is more
helpful to the applicant.
There are a number of ways in which a case may be ended or postponed. First, the
Associate District Counsel might be able to withdraw the Notice to Appear (the charging
document for removal proceedings). Second, the Associate District Counsel might join with the
self-petitioner’s representative in filing a motion to terminate the removal proceedings or a
motion to administratively close the removal proceedings to allow the client to apply for
adjustment of status before the INS. Finally, the Associate District Counsel might join in filing a
motion to continue the removal proceedings until the Vermont Service Center decides the selfpetition. If the Vermont Service Center approves the self-petition, then the client can file an
application for adjustment of status with the Immigration Court as a form of relief from removal
if she is eligible to adjust status. See Chapter 5 for more information on Adjustment of Status.
If the Associate District Counsel will not agree to withdraw the Notice to Appear or join
in a motion to terminate or postpone the removal proceedings, then the representative should file
a motion for a continuance with the Immigration Court. The motion should request that the
removal proceedings be postponed until the Vermont Service Center makes a decision on the
31
INS Memorandum, May 6, 1997, from the Office of Programs, regarding Supplemental Guidance on Battered
Alien Self-Petitioning Process and Related Issues, at 2 [reprinted as Appendix I, 74 Interpreter Releases 971 (June
16, 1997)].
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self-petition. The representative should attach a copy of the Vermont Service Center’s receipt or
a copy of the self-petition with certified mail receipts.
If the Immigration Judge will not continue the proceedings to wait for the Vermont
Service Center’s decision, if the Vermont Service Center does not approve the self-petition or if
the client is not eligible to self-petition, the client may be eligible for a form of relief from
removal known as VAWA cancellation of removal. If granted, VAWA cancellation of removal
allows the applicant to gain permanent resident status. For more information on Cancellation or
Removal, see Chapter 10.
Even if ordered removed, the client should be able to reopen the proceedings at a later
date if the Vermont Service Center approves the self-petition or if the client becomes eligible for
VAWA cancellation of removal.
§ 4.18 PRIMA FACIE ELIGIBILITY
When the INS receives the self-petition, it issues a receipt notice that includes the receipt
date, the self-petitioner’s priority date and the Vermont Service Center case number. (See
Appendix [ ] for a sample INS receipt notice.) The receipt date is the same as the priority date if
a family based petition has never been filed for the self-petitioner.32 However, as mentioned in
section [ ] above, if an approvable petition was previously filed on the self-petitioner’s behalf,
the self-petitioner may recapture that priority date.
Within several weeks, the INS will review the self-petition to determine whether it states
facts that, if proved true, would lead to approval.33 (See Appendix [ ] for a sample INS notice of
prima facie eligibility.) If it does, the INS will mail to the self-petitioner (or whoever she listed
in the address section) a letter stating that she is “prima facie” eligible under VAWA.34 This is
NOT a final approval letter, and self-petitioners must still respond to any requests for additional
information from the INS. However, the self-petitioner can use this letter as proof of her status
as a "qualified alien" to receive many forms of public assistance such as food stamps and
Medicaid in many states.35 (See the chart prepared by the California Immigrant Welfare
Collaborative in Appendix [ ] that describes what benefits are available to "qualified aliens," a
category which includes VAWA self-petitioners.)
If a self-petitioner needs public benefits right away, it may be better to file with the INS
just a one-page affidavit stating that she meets the eligibility requirements. Otherwise, INS may
discover a problem with the petition and find the person is not prima facie eligible.
32
If an approvable petition was previously filed on the self-petitioner’s behalf, the self-petitioner may recapture that
priority date, even if the old petition was eventually withdrawn or denied.
33
8 CFR § 204.2(c)(6)(E).
34
Id.
35
Memorandum from INS Office of Programs, May 6, 1997, regarding Supplemental Guidance on Battered Alien
Self-Petitioning Process and Related Issues, at 3-5 [reprinted as Appendix I, 74 Interpreter Releases 971 (June 16,
1997)].
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INS always gives self-petitioners a chance to supplement their self-petitions. If the
examiner believes that additional information is needed to adjudicate the case, he or she will
issue a Notice of Action/Request for Evidence.
§ 4.19 NOTICE OF ACTION/REQUEST FOR EVIDENCE
After sending the “prima facie” letter, the INS will do a more thorough review of the selfpetition and documentation provided. If more documentation is needed, the INS will request it
in a "Notice of Action." (See sample INS Notice of Action at Appendix [ ]). The additional
documentation must be sent to the INS within 60 days. If it is not possible to provide the
additional documentation within 60 days, you must request an extension that may be granted for
up to 60 additional days.
PRACTICE TIP: Contacting the INS about a Case
The Vermont Service Center has made available a Case Problem Resolution Line, for
advocates only, at (802) 527-4888.
§ 4.20 DEFERRED ACTION
If the self-petition is approved, the INS will mail the self-petitioner an Approval Notice
(Form I-797). (See sample Form I-797 at Appendix [ ]). Normally, this includes an "Initial
Grant of Deferred Action." This means that although the INS knows the self-petitioner is present
in the U.S. without lawful immigration status, it will not deport her before she can adjust to
lawful resident status. Initial grants of deferred action are for 15 months. Requests for
extensions of deferred action status are granted in increments of 12 months.36 The VAWA unit
at the Vermont Service Center is authorized to extend deferred action status as appropriate until
the self-petitioner is able to obtain lawful permanent residency.37
36
37
Cronin, Acting INS Executive Associate Commissioner, INS Mem. HQ/AND/70/6.1IP, dated September 8, 2000.
Id.
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§ 4.21 PREFERENCE CATEGORIES FOR FAMILY-BASED IMMIGRATION
To determine when an approved self-petitioner is eligible to adjust her status to that of a
lawful permanent resident, she must figure out under what preference category she falls.
If she is or was the “spouse” or “child” of a United States citizen as defined in the
discussion at Chapter 3, she is considered an immediate relative and can apply for adjustment of
status right away. She may do so by filing her application at the INS closest to her residence or
by submitting the application along with her I-360 to the Vermont Service Center. Although the
Vermont Service Center will not adjudicate the I-485, they can forward it to the INS district
office closest to the self-petitioner’s residence.
Others who can generally migrate through a preference visa petition will fall into one of
four categories. These categories are set forth at INA § 201(b). The preference categories are:
FIRST PREFERENCE: The beneficiary is the unmarried son or daughter, 21 years of age or
older, of a U.S. citizen. A first preference beneficiary is a U.S. citizen's "child" who has grown
up and is unmarried.
SECOND (2A) PREFERENCE: The beneficiary is the spouse or child of a lawful permanent
resident.
SECOND (2B) PREFERENCE The beneficiary is the unmarried son or daughter, 21 years of
age or older, of a lawful permanent resident. If an unmarried son or daughter of a lawful
permanent resident marries, he/she loses eligibility to immigrate.
THIRD PREFERENCE: The beneficiary is the married son or daughter, of any age, of a U.S.
citizen. (NOTE: Before the Immigration Act of 1990, this was referred to as Fourth
Preference.) A third preference beneficiary is a U.S. citizen's "child" who is now married.
FOURTH PREFERENCE: The beneficiary is the brother or sister of a U.S. citizen. The
petitioner must be at least 21 years old. Both siblings must at some time have been the children
of one common parent. (NOTE: Before the Immigration Act of 1990, this was referred to as
Fifth Preference.)
§ 4.22 HOW THE PREFERENCE SYSTEM WORKS
Once the self-petition is approved, an immediate relative may go to step two and apply
for immigration. Spouses and children of lawful permanent residents, however, must wait until a
visa is available under the preference system before going on to step two. Understanding how
the preference system works will help you analyze when to submit the adjustment application.
The preference system. When we discuss family visas in the preference system, we are talking
about people who immigrate through the first, second, third, and fourth preference categories.
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INS can approve an unlimited number of preference visa petitions each year. But not
everyone with an approved petition will be able to immigrate.
Only a certain number of people who are born in each country can immigrate to the U.S.
each year under the family preference system. Each time someone immigrates to the United
States under the preference system, one visa is charged to (subtracted from) the numbers of
visas set aside for the country where the person was born. If more people per year want to
immigrate than there are visas, that country develops a waiting list or "visa backlog."
As far as theory goes, that is about all you need to know. The more people who want to
immigrate from a country each year over its visa allotment, the longer the waiting list for that
country will be. For that reason, someone from France or Uruguay may be able to immigrate
much faster than someone with a similar visa petition from Mexico or the Philippines.
§ 4.23 USING THE STATE DEPARTMENT VISA BULLETIN
TO MAKE AN ESTIMATE OF WHEN YOUR CLIENT CAN IMMIGRATE
Each month the U.S. State Department issues a Visa Bulletin. With the right information,
you can consult the State Department Visa Bulletin to see if your client is eligible to immigrate.
When a backlog exists, predicting exactly when the client will be able to immigrate is
impossible. But the Bulletin may be used to make a very rough estimate of when the client
might be able to immigrate in the future. To do this you need to know the following information
about the intending immigrant:
1. The priority date of the visa petition
2. The country of chargeability
3. The preference category
1.
Priority date.
The date that the I-360 petition is filed with the INS becomes, upon approval of the I-360,
the beneficiary's "priority date" in the preference system. That date establishes the person's place
in line to wait for a visa, and to determine when the person can immigrate. The priority date is
the date that the INS received the petition and accepted the fee, not the date that the petition was
approved. This is only fair, because in some cases the petition might not be approved for several
months or even years after filing it.
Alternatively, if an I-130 visa petition was previously filed for the self-petitioner, she can
retain that priority date.
2.
Country of chargeability.
As a general rule, the person's place of birth is the country or territory to which a visa will
be charged. This is true even if the person has become a citizen of another country.
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3.
Preference category.
This is the category of the visa petition, for example second preference 2A for the
immigrating spouse of a lawful permanent resident.
PRACTICE TIP:
How to Read the Visa Bulletin
Look at the copy of a State Department Visa Bulletin in Appendix [ ]. First, notice the
date on the upper right hand corner. This shows the month to which this visa bulletin is
pertinent. The State Department issues a new visa bulletin each month and most of the
information in the bulletin changes from month to month. So checking the new visa bulletin
each month is important.
Across the top portion of the bulletin are all the categories of preference visas. Along the
left hand side is a list of countries called the "areas of chargeability." The first category says
"All Chargeability Areas Except Those Listed.” Known as the "worldwide" category, it includes
all countries not separately listed. For example, Argentina does not have a separate listing in the
bulletin. Therefore, a person from Argentina should use the numbers listed in the "All
Chargeability" column. The countries that fall into this category usually have the smallest
backlogs and thus the shortest waiting periods.
If the person is from a country that has its own separate listing, such as India or Mexico,
he or she must consult that column of information.
If you draw a line down from the relevant preference category and across from country of
chargeability you will find a date. That is the priority date of persons from that country, and in
that preference category, for whom visas are available now. The rule to reading the Bulletin is:
If your client's priority date falls before the date listed, a visa is now available and
she can immediately apply for lawful permanent resident status. If your client's
priority date falls on or after the date listed, no visa is available to her that month
and she must wait longer.
Sometimes, categories show the letters "C" or "U" instead of a date. The letter "C"
means that the category is current and there is no waiting for a visa, no matter when the
petitioner filed the petition. The letter "U" means that the category is unavailable. All the visas
in that category and country have been used up for the current year. Some visas may become
available at the end of the year or the beginning of the next year's accounting in October. Until
then, the person cannot immigrate no matter when his or her visa petition was filed.
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PRACTICE TIP: How to Order the State Department Visa Bulletin
You can receive the monthly State Department Visa Bulletin. There is no charge. Send
your address and a letter requesting the VISA BULLETIN to:
Visa Bulletin
Visa Office
Department of State
Washington, D.C. 20522-0113
You can also access the Visa Bulletin on the Internet by going to http://travel.state.gov
and can request at the website that the State Department email the Visa Bulletin to you monthly.
You can also telephone (202) 663-1541 to hear a recorded message on current priority dates.
PRACTICE TIP: Advising Your Client about When a Visa May Become Available
Predicting exactly when a visa will become available for a person waiting to immigrate
under the preference system is impossible. The priority dates in the Visa Bulletin do not advance
consistently because the number of people who apply in a particular preference category can
vary from month to month (the number is simply unpredictable), the number of people who are
on the waiting list who still want to immigrate is unknown, and the number of derivative
beneficiaries is unpredictable. The dates in one category may jump ahead three months over one
month of "real time," or they may stand still or even go backwards.
You can only make rough estimates of when a client will be able to immigrate when there
is a backlog. This is because no one knows exactly how many people are on the waiting list.
Some may have died, changed preference categories, or changed their minds. Some may have
had children, adding to the number of derivative beneficiaries ahead of you.
§ 4.24 EMPLOYMENT AUTHORIZATION
Approved self-petitioners also qualify for employment authorization. At this point, the
INS also tells the self-petitioner that she may file an I-765 to obtain work authorization
(Employment Authorization Document). (See blank I-765 at Appendix [ ]).
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1.
Self-Petitioners who are Immediate Relatives of U.S. Citizens
Self-petitioners who are immediate relatives of U.S. citizens or have a current priority
fate are eligible for employment authorization based upon their immediate eligibility to adjust
status to permanent residence.38 They need not show any need for employment, and they may
file their application for employment authorization at the same time as and along with the Form
I-360 self-petition and the Form I-485 adjustment of status application. Self-petitioners who fall
under the immediate relative category because the abuser is a USC can also file for work
authorization at the local INS office.
2.
Self-Petitioners who Must Wait until their Priority Dates Becomes Current
Approved self-petitioners who must wait until their priority date becomes current are
eligible for employment authorization based upon a grant of deferred action.39 Therefore, selfpetitioners who were abused by an LPR must wait until their self-petition is approved and they
are granted deferred action before obtaining employment authorization. At that time, a selfpetitioner can apply for work authorization by submitting Form I-765 to the Vermont Service
Center together with the filing fee of $120.00 and a statement that the self-petitioner has an
economic necessity for employment authorization. This statement should list the selfpetitioner’s assets, income, expenses and dependents.40 The application may be submitted with
the I-360 self-petition or may be filed after notification that the self-petition has been approved.
Employment authorization granted by the Vermont Service Center is issued in one-year
increments, so may need to be renewed annually.41
§ 4.25 ADJUSTMENT OF STATUS
If the Vermont Service Center approves the I-360 self-petition, then the self-petitioner
proceeds to the final step of the immigration process – obtaining lawful permanent resident
(“immigrant” or “green card” status). A permanent resident is someone who has a “green card.”
There are two methods for obtaining lawful permanent residence based upon an approved
self-petition. These two methods are: (1) adjustment of status and (2) consular processing.
Adjustment of status is a process for changing one immigration status, or undocumented status,
to the status of lawful permanent resident. It is done in the United States, through an application
filed with the INS. Consular processing is a means of obtaining lawful permanent residence at a
U.S. consulate abroad. If the self-petitioner will obtain a visa through adjustment of status, the
INS will retain the approval notice. If the self-petitioner will obtain a visa through consular
processing, the INS sends the approval notice to the National Visa Center of the Department of
State.42
38
8 CFR § 274a.12(c)(9).
8 CFR § 274a.12(c)(14).
40
8 CFR § 274a.12(d).
41
Cronin, Acting Executive Associate Commissioner, Office of Programs, INS Mem. HQ/AND/70/6.1P (Sept. 8,
2000), reprinted in 77 Interpreter Releases, 1432-33 (Oct. 2, 2000).
42
8 CFR § 204.2(3)(i).
39
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In general, adjustment of status is preferable to consular processing. Almost all VAWA
self-petitioners who are present in the United States should be able to adjust status. Please see
Chapter 5 for a detailed discussion of the Adjustment of Status process and Chapter 8 for a
detailed discussion of Consular Processing.
§ 4.26 NOTICE OF INTENT TO DENY
If the INS does not approve the self-petition, it will send the self-petitioner a Notice of
Intent to Deny, setting forth the reasons for the intended denial.43 (See sample Notice of Intent
to Deny at Appendix [ ]). The Notice will also give the self-petitioner additional time to respond
with necessary facts and documents before a final decision is made.44
If the INS denies the self-petition the applicant may file a notice of appeal with the Board
of Immigration Appeals (BIA) within 30 days after the date of the final decision to deny.45
Alternatively, the self-petitioner can file a Motion to Reconsider or Reopen with the Vermont
Service Center.46 See Appendix [ ] for sample Motion to Reopen or Reconsider. There is a fee
of $110.00 for these motions,47 but a fee waiver may be requested.48 For information about
appeals of denial, contact Gail Pendleton of the National Lawyers Guild's National Immigration
Project at [email protected].
PRACTICE TIP: Getting INS to apply VAWA 2000 standards to VAWA cases already
filed.
The 2000 amendments to VAWA made it apply to more victims of domestic violence and
made it easier to meet the self-petitioning requirements. Some people who have already applied
may have a better chance of having their self-petitions approved under the new rules. They may
wish to try to convince the INS to apply the new rules to their cases. See Pendleton and Block,
"Petitions For Immigration Status Under the Violence Against Women Act (VAWA): 2001," on
the National Immigration Project website, www.nationalimmigrationproject.org (click on the
"domestic violence" option), or contact Gail Pendleton at (617) 227-9727 or
[email protected] for suggestions about making this argument.
43
8 CFR § 204.2(c)(3)(ii).
Id.
45
8 CFR § 3.1(b)(5).
46
8 CFR § 103.5.
47
8 CFR § 103.7(b).
48
8 CFR § 103.7(c).
44
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§ 4.27 SPECIAL CONCERNS FOR ADVOCATES WHO ARE NOT
ATTORNEYS OR ACCREDITED REPRESENTATIVES
As noted elsewhere, gaining lawful permanent resident status (a green card) through
VAWA self-petitioning is a two-step process. In the first step, the applicant files a self-petition,
and if it is approved, she is granted permission to remain in the U.S. (“deferred action”), and is
eligible for work authorization and certain public benefits. In the second step, she files to
upgrade, or “adjust” her status to lawful permanent residence. Although many battered
immigrants justifiably focus on the self-petition and its benefits as the way to escape an abusive
situation, lawful permanent residence is both the official purpose of the family visa petitioning
process and a status which provides permanent, and greater protection for the self-petitioner and
her children.
At times, advocates at shelters and other agencies may provide the only or most effective
assistance to battered immigrants in many communities. However, the second stage of the
process, adjustment of status, must only be completed with the assistance of an attorney or BIA
Accredited Representative. Adjustment of status representation involves in-depth investigation
and analysis of a client’s admissibility to the U.S., as well as maintenance and monitoring the
client’s case over many years. Mistakes in representation may cause a client to lose her chance
at gaining lawful permanent resident status, or even to be put into removal proceedings and
deported.
What, then, should agencies and individuals who help clients through the first step of the
self-petitioning process do to ensure that those clients get adequate representation through the
second, more critical step? First, they can explain the full process to their clients, including:
1)
2)
3)
4)
5)
Whether the client is eligible to adjust status immediately (because the abuser is a
U.S. citizen) or whether she must wait several years to do so;
That how many years she must wait for a visa is determined by the State
Department’s “Visa Bulletin,” and that it is her responsibility – the INS will not tell
her to apply for adjustment of status when her visa petition becomes “current.”
That the client will need assistance in determining whether she is admissible to the
U.S., and whether she needs to apply for waivers of any grounds of inadmissibility;
That someone who is found to be inadmissible may be put into removal proceedings,
and possibly deported;
That the client must work with an immigration expert to prepare her case for
adjustment of status.
Second, the advocate should help the client find an attorney or BIA Accredited
Representative to represent her during the adjustment process, and should make sure the client is
able to make appointments with, and work effectively with that person. We recommend that
agencies that help battered immigrants to self-petition work to establish referral relationships
well in advance with immigration experts who can represent their clients in adjustment
proceedings. Some immigration experts may have special VAWA funding or otherwise be able
to represent VAWA clients for no or low fees, or may be willing to charge lower fees to a
particular agency’s clients in return for referrals from that agency. Because VAWA enables a
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self-petitioner to get a work permit upon approval of the self-petition, many clients may not need
free services as urgently at this point as during the first stage. NOTE that because in some cases
many years will elapse between filing the self-petition and adjustment, immigration experts with
whom you have developed relationships may have moved or gone out of business. We
recommend that, where possible, you build relationships with established non-profit immigration
service agencies like Catholic Charities, Legal Services, Legal Aid or International Institutes.
If it is impossible or unworkable to immediately refer a client to an immigration expert, it
is possible to reduce the risks of denial or removal by doing the following. First, a shelter or other
agency may do a preliminary (and not determinative) screening to determine whether the client
will have any problems showing that she is admissible by completing with the client the
“Adjustment of Status Red Flag Checklist” at Appendix [ ]. However, it is essential to recognize
that without accessing criminal or immigration records, this screening is not adequate to send the
client through the adjustment process without further review. Second, an advocate may explain to
the client how to keep track of her petition’s progress on the waiting list for an immigrant visa,
and the need to find an immigration expert to help her when her petition becomes current. You
should explain how the Visa Bulletin works, how to find her priority date and country, and how to
obtain the Visa Bulletin regularly (see explanation on the following page). Finally, don’t give up
hope during the period during which your client is waiting for her priority date to become current
that an immigration expert may move to your area, or that your client will move to or have better
access to a city with more immigration services. Ideally, you should stay in touch with the client
over the years to monitor whether she is keeping track of the Visa Bulletin or has made any
progress toward finding someone to represent her.
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