The Violence Against Women Act, or VAWA, gives abused spouses and children of U.S. citizens or lawful permanent residents (LPRs) who are living in the U.S. a procedural mechanism by which to "self-petition" for lawful permanent resident status (a U.S. green card). This mechanism acts as a substitute for the usual process, in which the immigrant must rely on participation by the U.S. spouse or parent. VAWA effectively cuts the abuser out of the process and limits his or her control over the immigrant.
But how long will this take compared to the usual process of applying for a family-based green card in the U.S.? This article will address that question, looking at the various steps in the process and how the VAWA aspect of the application might affect the timing of those steps.
Applying for a green card under VAWA involves many of the same steps as applying for any family-based green card. However, the process can take a little longer, for the reasons described below. It will also be different for immediate relatives (namely the spouses and children of U.S. citizens) than for preference relatives (spouses and children of LPRs). We'll explain both the similarities and the differences here.
With a non-VAWA family-based petition, a U.S. citizen or permanent resident prepares a petition on behalf of the immigrant beneficiary, on Form I-130 (issued by U.S. Citizenship and Immigration Services or USCIS). Similarly, a self-petitioner under VAWA prepares a petition on his or her own behalf, but using USCIS Form I-360.
In both cases, the person preparing the form must also include supporting evidence, such as a marriage or birth certificate and proof of the U.S. citizen or LPR's status. However, because the self-petitioner has to prove the abuse as well as the legitimacy of the marriage, gathering all the required evidence might take longer.
Now the process splits in two. The preference relatives submit the visa petition to USCIS as a separate package and have to wait a bit -- while the immediate relatives can combine it with their application to adjust status (get a green card), discussed further below.
Because the spouse and children of U.S. lawful permanent residents are not immediately eligible for a green card, they must submit a visa petition (whether on Form I-130 or I-360) to USCIS for approval before going any further with the green card process.
Upon receipt of your I-360 visa petition, USCIS will, within about 30 days, issue an I-797 Notice of Action “Receipt Notice.” This contains a receipt number as well as a Priority Date. The Priority Date is generally the date that the petition is received (we'll talk about its importance in the next subsection of this article). If your petitioner had previously submitted an I-130 petition on your behalf, however, there's good news: You may retain your original (and probably earlier) priority date.
The receipt number can be used to track the status of USCIS action on the petition. To get an idea of how long USCIS is taking to decide particular types of petitions, you can check the "USCIS Processing Time Information" section of its website, and choose the Service Center that will be handling your application from the drop-down menu. Unfortunately, USCIS tends to take longer to decide on an I-360 than an I-130 -- probably because it has to review all the included evidence.
Once the petition is approved, USCIS issues an I-797 Notice of Action “Approval Notice.”
USCIS's approval of your I-360 petition does not, in and of itself, provide any legal status in the United States. It merely means you have completed the first step in the process of obtaining permanent residency, and must wait for a current priority date to continue. Most beneficiaries would simply be expected to leave the U.S. in order to await their eventual interview at a U.S. consulate -- and the sooner the better, so as to avoid accruing "unlawful presence" and facing the three- and ten-year time bars on returning.
However, the U.S. government is sympathetic to the situation of VAWA applicants. USCIS may exercise discretion to place the self-petitioner in a status called "deferred action" -- which simply that it won't try to deport you, and that you'll be able to apply for a work permit while you wait. Deferred action decisions are granted in most cases, but for a limited time period. You may need to renew it more than once before getting the green card. Talk to an attorney for the details and for help.
Because of annual and per-country limits on visas for preference relatives, the self-petitioning spouse or child of an LPR may have to wait a long time -- often several years -- for a visa number to become available. It's a first-come, first-served waiting list. Your place on the list can be tracked using the priority date listed on the I-797 Notice of Action.
Until your priority date is current, you are not yet eligible to adjust your status on Form I-485. Again, however, you may be given the original priority date if your petitioner filed an I-130 on your behalf -- in which case you may not have to wait very long to apply to adjust status.
Whether you're a preference relative with an approved I-360 and a current priority date or an immediate relative who has prepared (but not necessarily submitted) your Form I-360, here's what you need to do next in order to adjust status to LPR or green card holder.
You must prepare and submit to USCIS (by mail) an I-485 Application for Adjustment of Status, along with supporting documents. Although you will send it to a central USCIS office, it will be passed along to your local USCIS Field Office. To find out processing times for Form I-485 at the field office, check the "USCIS Processing Time Information" section of its website, and choose the name of the city Field Office that will be handling your application from the drop-down menu.
Once you have successfully submitted your I-485 Application for Adjustment of Status, you are considered to be in a period of authorized stay. Assuming you included Form I-765 in your adjustment packet, requesting work authorization, you will receive a work permit to last you until you get your green card. (If you didn't include it, you can still submit Form I-765, along with your USCIS receipt notice for Form I-485.)
Within a period of months, you will be called into a USCIS office for an interview, at which time you will hopefully be approved for LPR status. Unlike regular family cases, your abusive spouse or parent will not be required to accompany you to that interview.
Unfortunately, the U.S. immigration laws and regulations set no limits on how much time USCIS can take in deciding on your application.
In the best case scenario, where the petitioner is a U.S. citizen and there are no delays based on lack of evidence (in which case USCIS would ask you to send more documents) or other issues of eligibility, the entire process can be completed in less than a year’s time. However, some applicants may wait several years.
To maximize the chances that everything goes smoothly and that your green card application will ultimately be approved, consult an immigration attorney with experience in this area.