Can A VAWA Case Be Approved After A Denial?
It is tragic when a new immigrant arrives in the United States full of hopes and dreams to then be abused by their US citizen spouse. Luckily, this type of situation is not very common and there are ways to get out of a abusive relationship even if you don’t have a green card yet. So, today I’m going to talk about whether a VAWA case can be approved after a denial.
But before we go deep into this topic we need to know exactly what it is and how it works.
VAWA stands for “violence against women act” and it is designed to protect anyone (men and women) from an abuser allowing you to self-petition your own case without the abuser’s knowledge. This is great because in many abusive relationships there is an unfair balance of power in the favor of the US citizen.
I have heard of many US citizens refusing to adjust their fiance(e)’s status to prevent them from obtaining a green card (and thus legal status). There are also situations where a husband will not file for removal of conditions thinking that their wife cannot leave them because they risk being deported for illegal status. All these situations have one thing in common – lack of knowledge of the US immigration system.
It is highly recommended for both the US citizen and the new immigrant to know exactly what the law is on US immigration so that you can protect yourself. Although I am mainly going to focus of VAWA petitions from the perspective of the non-US citizen, there are some instances where VAWA petitions are abused by dishonest immigrants seeking a way to a green card without the US citizen.
When You Should File For VAWA
The only people that should be filing for VAWA (form I-360) are those who are legitimately being physically abused. If you are verbally abused but never physically touched, you may have a harder time proving this abuse to the USCIS. It is not impossible though so make sure you gather as much evidence of verbal abuse as possible (such as recordings, affidavits, psychological assessment).
In the case of physical abuse, you are eligible to file for VAWA without your US citizen spouse. Before you can adjust your status or removal the conditions on your temporary green card, you will need to have your VAWA case approved. This is an extra step that the USCIS requires to make sure that only legitimate battered spouses and children are given a green card.
You don’t need to wait until you are eligible to adjust your status, once you have enough evidence gathered you can file your petition right away. There is no filing fee associated with VAWA which is helpful for those who wouldn’t be able to afford it otherwise. The first thing you should think about is your own safety, so leave the shared residence as soon as possible and stay with friends or family.
Once you (and your children) are safe, start gather your documents and evidence. Hopefully, you filed abuse charges against the US citizen but if you haven’t you can use other types of evidence such as:
- Photos of bruises, cuts, etc
- Affidavits from friend/family about the abuse
- Psychological assessment for mental health
- Documented events (such as diary)
With this evidence in hand, you need to prepare your petition similar to any other type of application. Make it organized so that it is easier for the USCIS adjudicator to review it quickly. Include a cover letter indicating all of the documents that are in your petition as well as sticky notes describing photos (you can also write on the back of photos in pencil).
When Your VAWA Case Is Denied
After a VAWA denial, you will be sent an letter from the USCIS called a “notice of intent to deny” which will outline the next steps for your case. In most cases, you will be able to appeal the denial decision but will need to submit your Notice of Appeal within 33 days. If you do not meet this strict deadline then you will be placed in removal proceedings – otherwise known as deportation.
It is recommended that you seek the advice of an experienced immigration attorney at this point if you are not familiar with the appeals process. But I understand that many people may not have the money to fork over for an expensive lawyer to handle your VAWA appeal. So, if you have the time to do the research, you can definitely file your appeal properly on your own. It’s actually quite simple.
Chances are that you may need to pay a fee for the appeal (unless you qualify for the fee waiver).
When you appeal a denial decision by the USCIS, the officer who made the original decision will first review your case. A review of the case will determine whether the evidence or argument submitted in your appeal justifies reopening or reconsidering the decision. If the adjudicating officer finds that reopening or reconsidering the decision is not warranted, the officer will forward the case for further review to the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA).
Note: Filing an appeal does not stop any removal proceedings or extend a previously set departure date.
How To File An Appeal After VAWA Denial
Most appeals are filed with Form I-290B, Notice of Appeal or Motion, but there are some exceptions. But if you are appeal a denial decision made on your VAWA case (I-360), then you will need to use the I-290 and submit it within 30 days.
When you are notified of an intent to deny decision that may be appealed, you will also receive information about which form you should use to appeal the decision.
You should file your appeal with the office that made the denial decision on your case or the office that now has jurisdiction over your case. For more specific instructions, you can refer to your denial notice and form instructions. If you mail your appeal, make sure you allow enough time for your documents to reach the office by the 30 day deadline.
You should provide a sufficient explanation as to why you believe the earlier denial decision was in error. If you do not provide an explanation of why you think the original decision was in error, your appeal may be denied. You must provide supporting evidence and documentation either with the appeal or after it has been filed.
The timeline for a final decision is not set but generally the AAO tries to resolve appeals within six months of receipt.
Your chances of getting you case approved after a denial depends on why you were denied and what type of evidence you can provide. If the adjudicator did not beleive that you were abused by the US citizen spouse, and you have no additional evidence of abuse, your chances are very low. However, if you have provide solid evidence such as police reports, documented events, and affidavits; your odds are much higher.