Will Denial of Form I-360 (VAWA) Lead to Removal Proceedings?

Any time an undocumented foreign national living in the United States applies to the U.S. government for immigration status, there is a risk of them not only being denied, but placed into removal proceedings and ultimately deported. This is equally true for people who file a self-petition Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

(To learn more about who qualifies for this special form of immigration relief, see Green Card Under the Violence Against Women Act (VAWA): Who Is Eligible.)

This shouldn't be cause for panic. Someone who is eligible for the immigration status being sought should receive U.S. residence (a green card) with no problem. The most likely circumstance in which pursuing a VAWA application might land you in immigration court facing removal include if you:

• file your I-360 with U.S. Citizenship and Immigration Services (USCIS) at the same time as an adjustment of status application and it is denied for any reason
• have a criminal history
• lied on this or any other immigration application
• have been deported previously, or
• have a criminal history.

In this article, we'll further acquaint you with these risks, and suggest when it's safe to submit a VAWA application.

Safety and Privacy Considerations for Victims

Be sure to consider the privacy of your computer, smartphone, or tablet when seeking help online or over the phone. Some victims might use the same device, network, or phone plan as the abuser, allowing the abuser to see their search or call history or otherwise track their activity. Also, many smart devices contain cameras or GPS tracking that can be used to locate and monitor someone's whereabouts. An abuser can even slip a small tracking device into a car, bag, pocket, or other belongings. Many cars have apps that allow anyone listed as an owner or co-owner to track its location remotely.

If concerned about privacy while searching online, several organizations provide assistance and resources, including National Domestic Violence Hotline and RAINN. You can also check out our Resources for Victims of Crime.

Why Filing Form I-360 With USCIS at the Same Time as Form I-485 Risks Deportation

As a VAWA applicant, you might, if your spouse is a U.S. citizen, be allowed to file your initial petition (Form I-360) at the same as or "concurrently" with your application for adjustment of status (a green card). This turns what is ordinarily a two-step process into one step.

Let's start with a little background. For most types of immigrant visa and green card applicants, step one in applying is to for a U.S. citizen, company, or other sponsor submit a petition to USCIS and wait for its approval before moving forward.

For VAWA applicants, this first step is completed using Form I-360. USCIS approval simply means that you have convinced the agency that you meet the definition of a battered spouse of a U.S. citizen or permanent resident and you may proceed to the next step, namely applying for a green card using Form I-485, Application to Register Permanent Residence or Adjust Status. The approval of the Form I-360 by itself does not give you any U.S. immigration status. (For specific information about how to complete Form I-360, please read Application Process for a VAWA Green Card.)

Spouses of U.S. citizens do not, however, need to wait for USCIS approval of Form I-360 before filing the I-485. They can file Form I-360 and Form I-485 at the same time.

Spouses of U.S. green card holders, by contrast, will need to wait for a visa to become available before they can apply to adjust status in the United States. The typical wait is two to five years. (See How Long Is the Wait for Your Priority Date to Become Current?.)

But here's the catch for spouses of U.S. citizens (or others who, for technical reasons, are eligible to file concurrently for adjustment of status): If you file the I-360 at the same time as you apply for a green card using the Form I-485, then the denial of the I-360 and I-485 could send you to Immigration Court. After denying an I-485, the immigration officer typically checks the file to see whether the applicant is legally in the United States. If not, the officer may forward the file to Immigration and Customs Enforcement (ICE) for removal proceedings in immigration court.

If you are concerned that your I-485 application for a green card could be denied even though your I-360 VAWA application has been approved, speak to an experienced immigration attorney to decide whether filing for VAWA benefits will be worth the risk.

How Criminal History Puts VAWA Applicant in Danger of Deportation Even After Step One, Filing I-360

An applicant's criminal history can put them in danger of deportation even if they did not file the I-485 at the same time as the I-360. This might come as a surprise, because the I-360 asks you to provide information about your immigration history but not any criminal history. (Criminal history is, after all, irrelevant to whether you were abused by your spouse and meet the other basic requirements for VAWA eligibility.)

However, USCIS can look up an applicant's criminal history any time they file any petition or application with it. If your criminal history is extensive or serious, USCIS can refer your case to immigration court by giving you a Notice to Appear (NTA) (which signals the start of removal proceedings). USCIS will issue an NTA only if it denies your I-360 VAWA application, however, because you would otherwise have the opportunity for a waiver when you apply for a green card on Form I-485. (To learn more about waiver eligibility, see When Is a Waiver of Inadmissibility Available for a Green Card Applicant?.)

So then the question becomes, if USCIS does deny your I-360, what are the chances that it will send you to removal proceedings? This depends on agency priorities as well as the policies of the current presidential administration. Your best bet is to consult an attorney if you have one or more criminal convictions of any sort. If you have not been deported before, USCIS might issue you an NTA and send you to immigration court if it denies your VAWA application. USCIS might give you the NTA at the same time as the I-360 VAWA denial, or perhaps later.

How Lying on a VAWA Application Could Lead to Deportation

There is a difference between an immigration application being denied because the person was not eligible and being denied because the person outright lied. If USCIS decides that you have purposefully lied on any of your VAWA-related (or other) applications, the officer reviewing your case will make a Statement of Finding that you committed fraud.

You will likely be charged with fraud as a reason to deport you and be put into removal proceedings, meaning you will need to appear before an immigration judge, with a government attorney also in the courtroom, arguing that you should be deported. Even if your I-360 petition is denied based on a reason other than fraud, the USCIS can still charge you with fraud.

If you are concerned that you made a mistake on your application, it's best to ask USCIS for an opportunity to explain this. You can make this request either of the USCIS officer who conducts your in-person adjustment of status interview or by submitting additional documents by mail.

Only if the USCIS officer makes a formal Statement of Finding that you lied will you potentially be put into removal proceedings.

VAWS Applicants Who Have Been Deported or Who Ignored a Deportation Order Risk Immediate Removal

If you have ever been deported from the United States and you later returned unlawfully, or you were ordered deported but never left the U.S., and then if USCIS denies your I-360, there is a strong probability you will be deported immediately. This would happen without you being issued an NTA or offered the opportunity to speak to an Immigration Judge.

If this describes your situation, you should absolutely not file Form I-360 without first speaking to an experienced immigration attorney.

Do Your Homework Before Applying for VAWA Relief

In trying to decide whether to file for VAWA, it is best to talk to an experienced immigration attorney to determine the strength of your case. If you do not know whether you have been ordered deported already, you can call the Executive Office of Immigration Review (EOIR) automated status check system at 1-800-898-7180. You will need to know your alien registration number (A-number) in order to use this system.