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Easing the Burdens of Self Petitioning under VAWA

By: Pia Marie Dyquiangco, ESQ

I once read a quote that summed up the tragedy behind domestic violence"Domestic violence causes far more pain than the visible marks of bruises and scars. It is devastating to be abused by someone that you love and think loves you in return. It is estimated that approximately 3 million incidents of domestic violence are reported each year in the United States." Although three million incidents are reported, some of those being victimized by such violence may find themselves unable to report due to the fear that they would lose immigration status if they were to report their abuser a.k.a their petitioner. When the Violence Against Women Act in 1994 was enacted by law, it created special routes to immigration status for certain battered non citizens. These provisions were updated in 2000 under the title Battered Immigrant Women's Protection Act.

Under VAWA, battered immigrants are allowed to self petition for legal status in the United States without relying on the abusive US Citizen or LPR spouse, parents or children to sponsor them to obtain permanent residence. Such self petition would take place by filing the Form I-360 Petitioner for Amerasian Widower, or Special Immigrant, and once the petition is approved, the battered non citizen may file for an adjustment of status (Form I-485).

More recently, USCIS issued a memorandum on April 11, 2008 that provides guidance to VAWA self petitioners who are present in the United States without having been inspected and admitted or paroled. The service states that an application for an approved VAWA self petitioner will not be determined ineligible for adjustment of status where he or she entered the United States without inspection and admission or parole. Additionally, the memorandum also stated that a VAWA self petitioner will no longer have to show that his or her illegal entry into the United States had a "substantial connection" to the domestic violence, battery or extreme cruelty. Therefore, making the hurdle for self petitioning based on VAWA easier.

Why does this make things easier for VAWA Self Petitioners? As a general rule, a person who seeks to adjust their status must have been inspected at a port of entry and either admitted or paroled into the United States. Additionally the adjustment applicant must also be admissible as an immigrant. One who enters without inspection is rendered inadmissible under Section 212(a) (6) (A) but a waiver of inadmissibility is provided for VAWA self petitioners provided they show the "substantial connection" to the unlawful entry and the violence. But hurdle no longer exists. USCIS will not deny a VAWA self petitioner's adjustment of status application solely because they were not inspected and admitted or paroled at entry. As an added bonus, USCIS adjudicators will deem this change as a basis to accept and approve, without paying a filing fee, a motion to reconsider or reopen a VAWA self petitioner's adjustment application provided the application was filed on or after January 14, 1998 and was denied solely because the VAW A self petitioner was inadmissible because of their unlawful entry (without inspection and admission or parole).

The plight of a non citizen to obtain legal status in the United States is difficult enough. To be coupled with domestic violence may make one feel that they have to tolerate such abuse in order to be able to adjust their status through the abuser's petition. However, updates in the law that make it easier for VAWA self petitioners to obtain permanent residency should remind us that this country does not tolerate domestic violence. There is a way out and a way for you to legalize your immigration status. Dr. Phil once said "You show other's how to treat you." Don't tolerate violence in your life, and in the lives of those you know. Educate yourself and others about how VAWA can help you. And should you need a professional to assist you in your VAWA Self Petition, contact a competent and experienced immigration attorney.

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