Waivers and Exceptions to Grounds of Inadmissibility for VAWA Applicants

The barriers to a U.S. green card faced by some applicants are eased for many VAWA self-petitioners.

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U.S. immigration officials are allowed to deny a visa, green card or other forms of entry to certain categories of applicants. In immigration terminology, these people are called "inadmissible." For a complete discussion of the categories of people who are inadmissible and the possibility of asking for a waiver, see Nolo's article, "Inadmissibility: When the U.S. Can Keep You Out."

However, in addition to the waivers discussed in that article, you can also apply for special waivers as an applicant for a green card under the Violence Against Women Act (VAWA). This article discusses the special waivers and other exceptions to the rules of inadmissibility available under VAWA.

Bars to Adjustment of Status

For most people who might be green-card eligible, adjustment of status is available as an application procedure only if they entered the U.S. lawfully, after having been inspected and admitted by a U.S. official at an airport, border, or other entry point, and then maintained lawful status in the United States. This is not true for VAWA applicants -- they may apply to adjust status regardless of having entered without inspection, worked without authorization, or fallen out lawful status since entry into the United States. (See the Immigration and Nationality Act or I.N.A. Sections 245(a) and 245(c).)

Unlawful Presence

One of the most common causes of inadmissibility is having stayed in the United States unlawfully for six months or more, after either having entered illegally or overstayed a visa, and then departed the United States. This issue is described in "Consequences of Unlawful Presence in the U.S.: Three- and Ten-Year Time Bars." In one of the exceptions within this law, however, you do not accrue unlawful presence at all if your presence in the U.S. can be connected to the abuse you were suffering.

In addition, VAWA self-petitioners living in the U.S. do not typically need to worry about this ground of inadmissibility, because they can typically adjust their status (apply for a green card) without departing the U.S. for a consular interview (a common trigger to these bars for most other green card applicants). If you are outside the U.S., however, you may be able to claim an exception to this provision in order to be granted an immigrant visa at your consular interview. You will likely have to show a connection between the abuse you suffered and your departure from the United States. The details are the subject of ongoing legal discussion -- talk to an attorney for a full analysis. (See I.N.A. 212(b)(9)(iii)(IV).)

Permanent Bar or Reentry After Removal

Reentering the U.S. unlawfully after you have either been ordered removed or spent more than a year in the U.S. unlawfully usually makes a person inadmissible, permanently. However, as a VAWA self-petitioner, you can apply for a waiver of this ground of inadmissibility if you can demonstrate a connection between the abuse you suffered and your removal, departure, reentry, or activity that triggered this bar. (See I.N.A. Section 212(a)(9)(C).)

Public Charge/Affidavit of Support Requirement

Applicants for adjustment of status -- including VAWA applicants -- must show that they will not become a "public charge" if they are granted U.S. permanent residence. This means they have to show they will not be a financial burden on society through the use of need-based public assistance.

Part of this process ordinarily involves the applicant having an Affidavit of Support filed on his or behalf, in which the U.S. citizen or permanent resident petitioner (sponsor) promises to financially support the adjustment applicant in the event he or she is not able to be self-supporting, at 125% of the U.S. Poverty Guidelines levels.

However, as a VAWA applicant, you are not required to file an Affidavit of Support with your adjustment application. Despite this, USCIS can still require you to show that you will not become a public charge in the future, by demonstrating that you will be able to support yourself once given a green card. You do not, however, need to show that your income will reach 125% of the U.S. Poverty Guidelines. (See I.N.A. Section 212(a)(4)(C)(i).)

Visa Fraud or Misrepresentation

If you got your visa or some other immigration benefit by fraud, you can be found inadmissible. However, as a VAWA applicant, you can apply for a waiver (unless the fraud involved pretending to be a U.S. citizen).

In order to qualify, you must show that either you yourself, or your qualifying parent or child, who is a U.S. citizen, permanent resident, asylee, refugee, or fellow VAWA applicant (in addition to a few more narrow categories), will suffer “extreme hardship” if the waiver is not granted. This is different than non-VAWA applicants who cannot rely on hardship to themselves when applying for this waiver. (See I.N.A. Section 212(i).)

Public Health

All visa or green card applicants, including VAWA applicants, can apply for a waiver if they have diseases of public health significance that would otherwise make them inadmissible. Unlike other applicants, however, VAWA applicants need not show that they are the spouse or unmarried son or daughter of a U.S. citizen, permanent resident, or other qualifying relative. (See I.N.A. Section 212(g).)

Criminal Grounds

As a VAWA applicant, you can apply for a waiver of inadmissibility for certain criminal acts. The waiver covers: crimes of moral turpitude; multiple criminal convictions; assertion of immunity from prosecution; simple possession of marijuana if it was 30 grams or less; and prostitution and commercialized vice.

Unlike other applicants for adjustment of status who apply for this waiver (under I.N.A. Section 212(h)), you do not have to show that a qualifying relative will suffer extreme hardship if your application is denied. You will, however, still need to show good moral character in order to be eligible for VAWA, which will likely require showing a connection between the abuse you suffered and commission of the crime(s).

by: Drew Sieminski

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