When applying for a Green Card or any other immigration benefit, certain requirements must be met. In certain cases, applicants will not meet these conditions because of special circumstances that may warrant an exception: this is often the case for VAWA self-petitioners.
This article will guide you through the different kinds of VAWA Waivers and Exceptions to Grounds of Inadmissibility, but it does not constitute legal advice. The contents of this piece are for informational purposes only; if you need help with your VAWA case, you can contact the Law Office of Shelle-Ann Simon to inquire about legal representation. We will do our best to ensure your safety and peace of mind as we navigate together the VAWA process.
Understanding VAWA and VAWA Waivers
The Violence Against Women Act is a comprehensive legal framework that was created to address domestic, sexual and gender-based violence, among other objectives. VAWA also created a special immigration route for certain eligible non-citizens to get their family-based green card.
What is a VAWA self-petition?
Immigrants who have been abused by their US Citizen or Legal Permanent Resident spouse or close relative and would otherwise depend on that person to request a Green Card can apply for adjustment of status by themselves through a VAWA self-petition.
What is a VAWA Waiver?
VAWA self-petitioners can also request different VAWA waivers. In broad terms, there are two different types of waivers you can request. There are VAWA waivers for certain grounds of inadmissibility, and then there’s the VAWA battered spouse or battered child waiver, which is available to VAWA petitioners who have a conditional Green Card.
VAWA battered spouse waiver
This waiver is available to immigrant victims of domestic abuse that have conditional permanent residence. This means that they are married to a US citizen or Lawful Permanent Resident spouse, and they got their Conditional Green Card through their spouse.
During the normal Green Card process, the immigrant must apply to get the “condition” removed from their Green Card within 90-before the two-year period of their Conditional Green Card ends. This involves signing a joint I-751 petition with their spouse. When said spouse is abusive towards the immigrant, they may refuse to sign the petition or take advantage of the situation to control and abuse the victim further.
The VAWA battered spouse waiver allows the immigrant victim to ask for a waiver of the joint petition, so they may get the condition removed from their Green Card without the cooperation of their abusive spouse, and without having to wait two years in an unsafe and violent situation. To obtain this waiver, the immigrant must prove that they were abused by their spouse.
VAWA battered child waiver
The VAWA battered child waiver works similarly to the battered spouse waiver. When a US citizen or Legal Permanent Resident marries an immigrant, they can file Green Card petition for their immigrant spouse’s children besides filing for their immigrant spouse. This way, both the immigrant and their children obtain Conditional Permanent Residence. Because the Green Card is Conditional, the children of the immigrant also need the joint petition to have the “condition” removed and obtain “regular” Permanent Resident Status.
If the US Resident or Legal Permanent Resident is abusive towards the immigrant’s children, they may file a VAWA battered child waiver to remove the conditions from their Green Card without the abusive parent’s cooperation. Alternatively, they can be included in their immigrant parent’s VAWA battered spouse waiver application as a “derivative”.
Eligibility requirements for VAWA battered spoused waiver (or battered child waiver)
If you are applying for this VAWA waiver to be exempted from filing the joint petition, you must meet the following eligibility requirements:
- The immigrant entered the marriage with the US citizen/LPR “in good faith”
- During the marriage, the immigrant spouse/immigrant spouse’s child were subjected to extreme cruelty or battery by the US citizen/LPR spouse
What is a “good faith marriage”?
Basically, a good faith marriage is one in which both parties decide to get married out of a desire to be with each other. When it comes to USCIS “good faith” marriage criteria, the immigrant must prove that they married their spouse out of love and not because they wanted to obtain an immigration benefit.
What does “battery” mean?
Battery refers to physical abuse. The definition is narrower than “extreme cruelty”, which includes psychological and sexual abuse, as well as threats.
What does “extreme cruelty” mean?
Extreme cruelty refers to abusive or controlling behavior. Violence or threats of violence, forcible detention that leads to harm (be it mental or physical), sexual or psychological abuse, molestation, rape and forced prostitution are all examples of extreme cruelty.
When you file a battered spouse or battered child waiver, you must provide evidence of the extreme cruelty or battery you or your child were subjected to at the hands of your US citizen/LPR spouse.
USCIS cannot request a specific type of evidence to prove that you suffered either battery or extreme cruelty; however, you should consider presenting as much evidence as possible when building your case. Here’s a list of common types of evidence for VAWA cases:
- A statement from you (the victim) that describes how you were abused by your spouse during your marriage
- Photographs of any physical injuries you suffered
- Medical records that support your claim
- Police reports
- A letter from a mental health service provider (or domestic violence counselor)
- If you are living or have lived in a shelter for victims of domestic violence, any documentation that can prove it
- Statements from any friends or family members that can describe the abuse and how it has affected you
Domestic abuse is an overwhelming and distressing experience; more so for immigrant victims who may feel trapped because their abuser holds the key to their Green Card. You don’t have to endure abuse: let us help you figure out how to safely get you out of your current situation without compromising your Green Card.
VAWA Waivers for Grounds of Inadmissibility
There are two different processes through which eligible immigrants may apply for a Green Card. If they have entered the United States lawfully and have maintained lawful status during the entirety of their stay, they can adjust status without leaving the country (this process is called adjustment of status).
If an immigrant entered the country without inspection, worked without having authorization or stayed in the United States without lawful status for an extended period of time (more than 180) they become inadmissible. They may still “fix their status” if they are eligible for a Green Card, but they must apply for an inadmissibility waiver and they have to leave the United States to undergo consular processing back in their home country before they are granted Permanent Residence.
VAWA petitioners, HOWEVER, can adjust their status EVEN IF they lack lawful entry, worked without authorization, or had their lawful status expire after entering the United States.
What are “grounds of inadmissibility”?
Grounds of inadmissibility are different circumstances which bar a person from entering (or re-entering) the United States. Unlawful presence, illegal entry, public charge, immigration misrepresentation or fraud, deportation or removal are some of the most common grounds of inadmissibility.
The following list explains how VAWA inadmissibility waivers differ from regular inadmissibility waivers, and what is required to obtain the VAWA waiver in question. It also includes exemptions to grounds of inadmissibility that apply to VAWA self-petitioners.
VAWA waiver vs exemption
Depending on context, the words waiver and exemption may be used as synonyms. Here, however, each word has a specific, although very similar, meaning.
When an immigrant requests an inadmissibility waiver, they are asking USCIS to make an exception because there are special circumstances that warrant it (typically, a close US Citizen or LPR Citizen who is close relative or spouse and would suffer extreme hardship in the immigrant’s absence).
An exemption to grounds of inadmissibility is stated by the law an applies to those who meet the eligibility criteria for said exemption.
In other words: with a waiver, USCIS is “waiving” the requirement; if you are exempt, the requirement does not apply to you.
Public Charge Exemption
Immigrants who are applying for a Green Card must usually prove that they are not likely to become a Public Charge if they are granted permanent resident status – that means, proving that they won’t become a financial burden on the US government.
VAWA applicants, however, DO NOT have to prove they won’t become a public charge, and neither do they need to present an Affidavit of Support signed by a third party on their behalf.
Unlawful Presence Exemption
“Unlawful presence” takes place when an immigrant stays in the United States without lawful status for a period longer than 180 days. The consequences for overstaying a visa are a three-year ban or a ten-year ban, depending on whether you stayed in the United States for less or more than a year, during which you may not enter the country.
VAWA applicants are exempt from accrual of unlawful presence IF they can prove there’s a connection between the abuse they were suffering and their overstaying their visa.
Most VAWA self-petitioners do not have to worry about unlawful presence anyway, because they can usually adjust their status without leaving the country. However, if you are a VAWA self-petitioner and are outside the United States, you can still claim an exemption to the unlawful presence ground of inadmissibility. Contact an attorney and have them review your case if you need to undergo consular processing as a VAWA self-petitioner.
Waiver after Removal or Deportation
Most people become permanently inadmissible to the United States if they left the country because of a deportation or removal order. This is different form the 3-year or 10-year bar, which are “temporary” inadmissibility periods. VAWA self-petitioners, however, can apply for a waiver if they can prove that their having being deported or removed is connected to the abuse they endured.
Waiver for Visa Fraud or Visa Misrepresentation
Immigrants who obtained an immigration benefit by fraud or misrepresentation (i.e., they lied to immigration officials or presented false documents) can be found inadmissible to the United States.
VAWA petitioners can apply for a waiver IF they can prove “extreme hardship” to themselves or their qualifying parent or child (UNLESS they committed fraud by pretending to be a US citizen).
What is a qualifying relative?
A “qualifying” relative (parent or child) is US Citizen or Legal Permanent Resident (or fellow VAWA petitioner, asylee or refugee, and some other categories) that will suffer extreme hardship if you – the VAWA-petitioner – are not granted a waiver and allowed to remain in/return to the United States.
Only VAWA self-petitioners can claim extreme hardship to themselves in order to request a waiver for this ground of inadmissibility; other applicants have to rely on hardship to their qualifying relative in order to apply for the waiver.
Waiver for Criminal Grounds of Inadmissibility
VAWA self-petitioners with a criminal history that would otherwise make them inadmissible can apply for a waiver if they can prove that they are of good moral character – this will most likely imply providing evidence that the crimes you were convicted of are the result of or related to the abuse you suffered. This waiver does not apply to all crimes; you should consult an attorney and have them review your case to determine whether you have a case and how you can build it.