Waivers and Exceptions to Grounds of Inadmissibility for VAWA Applicants

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 who can be found inadmissible and the possibilities of asking for a waiver (legal forgiveness), see Inadmissibility: When the U.S. Can Keep You Out.

However, in addition to the waivers discussed in that article, special waivers are available to people applying 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.

How VAWA Applicants Avoid Some Bars to Adjustment of Status

For most people who might be green-card eligible, the process known as "adjustment of status," in which one goes through the entire green card application within the U.S., dealing solely with U.S. Citizenship and Immigration Services (USCIS), is available only under certain conditions. People who are in the U.S. and hope to choose this procedure instead of consular processing in their home country ordinarily need to have 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 have maintained lawful immigration status in the United States after that (without overstaying their permitted time).

This is not true for VAWA applicants, however. They may apply to adjust status regardless of whether they:

• entered the United States without inspection (in other words, illegally)
• worked without authorization or a work permit in the United States, or
• fell out lawful immigration status since their entry into the United States (that is, accrued unlawful presence).

(See the Immigration and Nationality Act at I.N.A. §§ 245(a) and 245(c).)

How VAWA Applicants Can Overcome the Unlawful Presence Ground of Inadmissibility

One of the most common causes of inadmissibility among green card applicants 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 the unlawful presence ground of inadmissibility because they can typically adjust status (apply for a green card) without departing the U.S. for a consular interview, which is a common trigger to these bars for most other green card applicants.

If you are outside the U.S., you might still be able to claim an exception to the three- and ten-year bar 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.

Talk to an attorney for a full analysis of this exception, if you have spent time in the U.S. without permission. (See I.N.A. § 212(b)(9)(iii)(IV).)

How VAWA Applicants Can Overcome Permanent Bar on Reentry After Removal From the U.S. Ground of Inadmissibility

Reentering the U.S. unlawfully after you have either been ordered removed (by an immigration judge) 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 to USCIS 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. § 212(a)(9)(C).)

How VAWA Applicants Can Overcome Public Charge/Affidavit of Support Requirement Ground of Inadmissibility

Applicants for adjustment of status through family must ordinarily show that they will not likely become a "public charge" if 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.

However, VAWA applicants are an exception: They need not go through a public-charge analysis when applying for a green card; nor do they need an Affidavit of Support filed on their behalf. (See I.N.A. § 212(a)(4)(E).)

How VAWA Applicants Can Overcome Visa Fraud or Misrepresentation Ground of Inadmissibility

If you got your visa or some other immigration benefit by a lie or misrepresentation, or through the use of false documents or other 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 the law for non-VAWA applicants, who cannot rely on hardship to themselves when applying for this waiver. (See I.N.A. § 212(i).)

How VAWA Applicants Can Overcome Health Grounds of Inadmissibility

All visa or green card applicants, including VAWA applicants, can apply for a waiver of inadmissibility 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 in order to be approved for this waiver. (See I.N.A. § 212(g).)

How VAWA Applicants Can Overcome Criminal Grounds of Inadmissibility

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. § 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 any crimes.

Getting Legal Help

A good attorney might improve your chances of obtaining VAWA relief. The attorney can help you highlight the most compelling portions of your claim, overcome any negative information, prepare the paperwork and supporting documents for the application and any needed waivers, and so on.

Fortunately, VAWA is an area where you'll find a lot of help from volunteer attorneys or nonprofit (charitable) organizations serving immigrants and refugees.