Adjustment of Status off Approved Form I-360 as VAWA Self-Petitioner

 

Introduction: Adjustment of Status for VAWA-Self Petitioners with Approved Form I-360

Approved Form I-360An alien with an approved Form I-360 Petition as a VAWA self-petitioner may apply for adjustment of status when his or her priority date is current. VAWA self-petitioners are exempt from the prohibition against adjustment of status based on entry without inspection (EWI) and the bars to adjustment listed in section 245(c) of the INA. Furthermore, the VAWA beneficiary may apply for naturalization after 3 years of permanent residency instead of 5. In this article, we will explain priority dates in the VAWA adjustment of status context, employment authorization with an approved Form I-360, the exemptions from certain bars to adjustment of status for VAWA self-petitioners, and the shorter naturalization period.

Please see our articles to learn about applying for permanent residency as a battered spouse [see article], child [see article], or parent [see article]. Also see our related article on VAWA cancellation of removal [see article].

Priority Dates

After a Form I-360 petition is approved, the self-petitioner may apply for adjustment of status until his or her priority date is current. Battered spouses or children in the immediate relative category will be able to apply for adjustment of status as soon as the Form I-360 is approved. If a self-petitioning spouse or child is already the beneficiary of a Form I-130 filed by the abusive spouse or parent, 8 C.F.R. 204.2(h)(2) permits the self-petitioner to transfer the priority date from the Form I-130 petition to the Form I-360.

Employment Authorization

Under section 204(a)(1)(K) of the INA, an alien with an approved Form I-360 is eligible for work authorization. The alien may be provided with an “employment authorized” endorsement or work permit “incidental to such approval.”

Exception from EWI Bar and Certain Section 245(c) Bars

Those with approved Form I-130 petitions as VAWA self-petitioners are exempt from bars to adjustment of status related to EWI and under 245(c) of the INA.

First, section 245(a) explicitly exempts VAWA self-petitioners from the requirement that an adjustment applicant must have been “inspected and admitted or paroled into the United States.” Section 245(a)(2) renders an inadmissible alien unable to adjust status. However, a United States Citizenship and Immigration Services (USCIS) memorandum interprets the exception in 245(a) as waiving inadmissibility for entry without inspection (EWI) found in section 212(a)(6)(A) [see memo].1 Therefore, EWI will not prevent an alien with an approved Form I-360 as a VAWA self-petitioner from being granted adjustment of status. There is no longer a requirement to show a connection between the VAWA self-petitioner's victimization and the EWI.

Section 245(c) of contains numerous bars to adjustment of status. However, those with approved Form I-360 petitions as VAWA self-petitioners are exempt from all of the bars to adjustment of status under section 245(c).

However, other inadmissibility grounds and bars to adjustment of status may still apply. For example, the Fifth Circuit held in Khanh Nhat Thuy Le v. Holder, 732 F.3d 425 (5th Cir. 2013) [PDF version] that section 245(d) bar to adjustment of status against K1 visa beneficiaries except for marriage to the petitioning U.S. citizen applies to VAWA self-petitioners.

An alien considering filing a Form I-360 as a VAWA self-petitioner should consult with an experienced immigration attorney in order to determine whether he or she would ultimately be eligible to adjust status.

Naturalization

Section 319(a) of the INA allows for a permanent resident who obtained his or her permanent residency as a VAWA self-petitioner to apply for naturalization after 3 years of continuous residency in the United States on permanent resident status. The requirement that the applicant be living with his or her spouse or parent is waived. However, the requirement under section 334(b) that no person may file for naturalization who is under the age of eighteen is not waived [see memo].2

Conclusion: Adjustment of Status for VAWA-Self Petitioners with Approved Form I-360

A noncitizen with an approved Form I-360 as a VAWA self-petitioner must still apply for adjustment of status and the approval of the Form I-360 by itself does not guarantee that an adjustment of status application will be approved. Accordingly, it is advised to consult with an experienced immigration attorney to ensure that each step of the process is handled efficiently. If a noncitizen receives notice that USCIS intends to revoke his or her approved Form I-360, it is essential to consult with an experience immigration attorney immediately.

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  1. Memo, Aytes, Assoc. Director, Domestic Operations, USCIS, HQDOMO 70/23.1 (Apr. 11, 2008)
  2. Memo, Yates, Assoc. Dir. Operations, HQOPRD 70/33.1 (Jan. 27, 2005)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1069-70, Print. Treatises & Primers.