My Vawa And AOS Applications Were Denied, What Are My Options For Appeal To Stay In The U.S.?
The only way to file for Adjustment of Status without your U.S. citizen spouse is through VAWA. VAWA stands for “violence against women act” and it is intended to protect a battered spouse, child or parent.
A denied VAWA and AOS petitions will void your EAD (work permit) and AP (advanced parole) immediately.
Am I Eligible To Self Petition Under VAWA Act?
- Spouses—A battered spouse and certain ex-spouses of U.S. citizen or lawful permanent residents
- Child—A battered child (under 21 years of age and unmarried) who has been abused by U.S. citizen or lawful permanent resident parent.
- Parent of a child— A parent of a child who has been abused by his or her U.S. citizen or lawful permanent resident spouse; or
- Parent of abusive U.S. citizen—A parent who has been abused by his/her U.S. citizen child who is at least 21 years of age at the time the self-petition is filed (i.e., “elder abuse”).
What Evidence Do I Need To File For Vawa And Did I Provide Enough?
Individuals who submit a VAWA self petition must prove that their abuser was / is a United States citizen or legal permanent resident. There are other requirements depending on whether you are a spouse or child of the abuser.
For a self petitioning spouse:
- You were or are married to the U.S. Citizen abuser or legal permanent resident
- The marriage is or was a bona fide “good faith marriage,” meaning that the petitioner did not enter into the marriage solely to gain lawful immigration status in the U.S.
- The abusive U.S. citizen / legal permanent resident spouse battered or subjected you to extreme cruelty during the marriage
- You lived with the abusive spouse at some point during the marriage
- You live in the United States or if living abroad, you were subjected to abuse by the U.S. citizen / legal permanent resident abusive spouse in the U.S.; and
you are of good moral character.
What Are Some Reasons That My Vawa Was Denied?
There could be a number of specific reasons that your VAWA petition was denied. Often times it is the result of not providing all the necessary documents that are required by the USCIS.
Below is a list of the type of evidence you should have submitted with your VAWA petition.
Abuser is/was a USC or LPR:
Photocopy of abuser’s birth certificate attesting to birth in any U.S. state/territory
Photocopy of abuser’s Naturalization Certificate
Photocopy of abuser’s US Passport
Photocopy of abuser’s Alien Registration Card demonstrating LPR status
Self petitioner is/ was legally married to LPR or USC abuser:
Marriage was a “good faith” / bona fide marriage:
Evidence of jointly owned assets
Documentation of commingling finances
Birth certificates of mutual children
Evidence of joint insurance policies
Testimony/other evidence regarding courtship/wedding ceremony/shared residence
LPR/USC abused the self petitioner during their marriage:
Reports/affidavits from police, judges, other court officials
Reports/affidavits from medical personnel, school officials, clergy, social workers, other service agency personnel
Self petitioner lived with abuser at same residence at some point during relationship:
Birth certificates of children
Affidavits of friends and family
Self petitioner lives in the US OR, if living abroad, was subjected to abuse by LPR or USC spouse in the US:
Current lease agreement
Affidavits from friends/family/social services agency
Self petitioner is of good moral character: (need from each locality or State in the US the petitioner has resided in for 6 or more months during 3 year period immediately preceding filing of petition)
State issued criminal background check
Should I Appeal The Denial Decision Or Should I Re-Apply For VAWA?
You will likely have to file a Notice of Appeal and a fee with the VSC within 30 days of receiving the denial. After processing of the fee and the form, the appeal will be referred to the USCIS Administrative Appeals Office (AAO).
You may also file a motion to reopen or motion to reconsider if you received unfavorable decision in your case.
Whether you can refile will depend on the basis for the denial. If the I-360 was denied for lack of evidence, then USCIS would probably accept a new I-360.
If VAWA was denied for lack of standing, then they likely would not accept a new I-360, and they would instruct you that your only recourse is to appeal the previous denial.
For example, a lack of evidence would be if they were not convinced by the evidence presented that you had been subjected to extreme cruelty and abuse.
An example of lack of standing would be if you had filed the I-360 more than two years after divorcing the accused abusive spouse, and were statutorily ineligible to file under VAWA.
In either case, you could file an appeal within 30 days of the denial. Appeals are usually denied unless you can either prove the denial was clearly in error, or you can provide new evidence that would have changed the outcome if the evidence had been submitted before the decision.
Do I Qualify For Relief Under VAWA If I Am Under Removal (Deportation) Proceedings?
Yes, if you are in removal (deportation) proceedings, you may qualify for cancellation of deportation under VAWA.
You should speak with an immigration attorney if you are in removal proceedings.
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