SEPTEMBER 2017



Life after entry without inspection (Part 2)



By ALBERTO GONZALES

Immigration Attorney

(708) 916-3077

Note: Nothing in this article is intended to create an attorney-client relationship. This article provides a general overview only, is not intended to constitute legal advice, and should not be relied upon in lieu of consultation with an immigration attorney.

In this new scenario, Jose, a U.S. citizen, has been beating his wife Maria. Ten years ago, Maria, as an undocumented immigrant, crossed the border into the U.S. without presenting herself to a U.S. immigration officer. This entry is called “entry without inspection” (EWI). Jose has threatened to have Maria deported if she reports the abuse or if she leaves him. Is Maria forever at the mercy of Jose?

Adjustment of status (AOS) is the process in which one applies for U.S. lawful permanent residence (LPR or “green card”) without leaving the U.S. The alternative to AOS is to apply for an immigrant visa before a U.S. consulate abroad. However, if such person has been unlawfully present in the U.S. for over 180 days, departing the U.S. may cause that person to be barred from returning for many years. Thus, AOS is often the preferred way of obtaining LPR status.

According to Section 245(a) of the Immigration and Nationality Act, only a person who has been “inspected and admitted” or “paroled” or a Violence Against Women Act (VAWA) approved self-petitioner may apply for AOS. EWI is not considered being inspected and admitted or paroled. Fortunately, despite her EWI, Maria may pursue AOS if she can qualify as an approved VAWA self-petitioner.

Violence Against Women Act (VAWA)

Normally, a foreigner needs a close U.S. citizen (USC) or LPR relative to first file an immigrant petition for such foreigner with the Immigration Service (USCIS), which will then serve as a basis for family-based AOS. Under VAWA, an abused victim may “self-petition” - file an immigrant petition for himself/herself, without cooperation of the abusive USC/LPR spouse.

To self-petition under VAWA, the victim must: 1) have lived with the abusive USC/LPR spouse; 2) have suffered battery or extreme cruelty in the marriage; 3) have entered the marriage in good faith; and 4) show good moral character. Upon the VAWA self-petition’s approval, the victim of a USC spouse may immediately apply for AOS; the victim of an LPR spouse must wait until the self-petition’s priority date is reached in the visa quota.

VAWA protects spouses of either gender, children of abusive USC or LPR parents, and parents of abusive USC adult children. VAWA applies even if the victims entered with a crew member visa, overstayed their visa, or committed certain crimes.

Source consulted: Kurzban, Ira J., Immigration Law Sourcebook 1168 et seq. (15th ed. 2016).

 


 

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