ALLOWABLE SELF PETITIONS TO IMMIGRATE TO THE U.S.A.
(for spouses and children of U.S. Citizens or of Legal Permanent Residents)

 

Widow(er) self-petitions. If the widow(er) is in the United States and he or she is ineligible for adjustment of status or does not intend to apply for adjustment of status, the petition should be filed with the Vermont Service Center.  If the widow(er) is in the United States and is eligible for adjustment of status, the petition and the application for adjustment of status may be filed simultaneously with the National Benefits Center at the appropriate Chicago “Lockbox” address. Remember that an immigrant visa is always available to immediate relatives of U.S. citizens, and such aliens are also exempt from many of the bars applicable to most adjustment applicants. If the widow(er) currently resides outside the United States, the petition should be filed with the USCIS overseas office with jurisdiction over the alien's place of residence. If no USCIS overseas office exists with jurisdiction over the alien's place of residence, the petition may be filed with the U.S. consulate with jurisdiction over the alien's place of residence.

Battered spouse/child/parent self-petitions
. All self-petitions filed on Form I-360 by battered spouses, children, or parents must be mailed directly to the Vermont Service Center. This procedure enables the Service to expedite the processing of these petitions and adjudicate them on a uniform basis. Self-petitionsfiled with other USCIS offices will be returned with instructions to file at the Vermont SC. If the self-petitioner is in the United States and is eligible for adjustment of status, the petition and the adjustment of status application may be filed simultaneously with the Vermont Service Center. In the past, a self-petitioner could file an adjustment of status application only after the self-petition was filed and approved by the Vermont SC. As of July 30, 2007, concurrent filing of self-petitions and adjustment of status applications is permitted provided an immigrant visa is immediate available and the self-petitioner is otherwise eligible for adjustment. Remember that an immigrant visa is always available to immediate relatives of U.S. citizens, and such aliens are also exempt from many of the bars applicable to most adjustment applicants

Exceptions to the normal requirements for adjustment for battered spouses/children. Legislation enacted in 2000 allows persons with approved self-petitions to adjust their status under the normal adjustment provision, INA § 245(a), even if the self-petitioner entered the without inspection and notwithstanding the limitations imposed by INA § 245(c). As a result, the self-petitioner would remain eligible for § 245(a) adjustment notwithstanding the existence any of the following bars to adjustment:
(1) entry without inspection (EWI);
(2) overstay of a valid period of nonimmigrant stay or failure to maintain lawful status at any time;
(3) unauthorized employment at any time after entry;
(4) admission as a crew member in the D nonimmigrant category;
(5) admission as an alien in transit without a visa (TWOV);
(6) admission as a tourist or business visitor under the VWP or the Guam Visa Waiver Program; or
(7) admission as an S nonimmigrant.

USCIS issued guidance in April 2008 addressing adjustment of status applications filed by VAWA  (Violence Against Women (and men) Act) self-petitioners who are present in the United States without having been inspected and admitted or paroled. The agency clarifies the effect of a 2000 statutory amendment exempting self-petitioners from the requirement under § 245(a) that adjustment applicants must be admitted or paroled. The agency has indicated that the provision also exempts self-petitioners from the inadmissibility ground under § 212(a)(6)(A) (which renders inadmissible an alien who is present in the United States without inspection). The guidance also allows a motion to reconsider or reopen to be filed, without fee, for a VAWAself-petitioner who filed an adjustment application on or after January 14, 1998, and USCIS denied the application solely because the VAWAself-petitioner was inadmissible under section 212(a)(6)(A) of the Act.

Transfer of priority dates for battered spouse/child of permanent resident with prior family 2A preference petition. A self-petitioner listed as the beneficiary of a family second (2A) petition filed by the permanent resident abuser to accord the self-petitioner immigrant classification as his or her spouse or child will be allowed to transfer the visa petition priority date to the self-petition. The earlier priority date may be assigned without regard to the current validity of the prior visa petition filed by the abuser, and may be used even if the relative visa petition was withdrawn, denied, or the approval revoked. This is important for self-petitioners who are spouses or children of permanent resident abusers since by allowing the transfer of priority dates, they will not have to wait years before a visa number becomes available.

Battered spouses and children with pending adjustment applications. An adjustment of status applicant who states that he or she has been abused by the petitioning U.S. citizen or permanent resident spouse or parent may file a self-petition while an adjustment application is pending. If the spouse or child chooses to self-petition in these cases, he or she is not required to file another adjustment of status application if: (1) the previously filed adjustment application is still pending before USCIS on the date the self-petition was filed, and (2) the spouse or child qualified for adjustment of status on the date the adjustment application was filed with USCIS. In these cases, the alien may continue to obtain work authorization and advance parole for travel purposes. If an adjustment of status application is not pending, the self-petitioner may file an adjustment of status application with a local office only after the self-petition is filed and approved by the Vermont SC, provided an immigrant visa is immediately available (as discussed above).

 

FOR MORE INFORMATION CALL OUR IMMIGRATION LAW OFFICE AT 1-800-500 7716.