VAWA, Part 27

[Meingandu 6]

Hello posting a scenario so see what are everybody's thoughts.

 

Given that an individual had a legal status, got married filed i130 and it got denied, now the individual fell out of legal status and was put on removals and had court date and filed EOIR-42B.

 

Filed vawa and given that vawa gets approved, will the individual have to get the 485 with the court or USCIS?

[OldUser 8,392]

2 minutes ago, Meingandu said:

Hello posting a scenario so see what are everybody's thoughts.

 

Given that an individual had a legal status, got married filed i130 and it got denied, now the individual fell out of legal status and was put on removals and had court date and filed EOIR-42B.

 

Filed vawa and given that vawa gets approved, will the individual have to get the 485 with the court or USCIS?

While in removal proceedings, I-485 is in court's jurisdiction 

[Meingandu 6]

2 hours ago, OldUser said:

While in removal proceedings, I-485 is in court's jurisdiction 

Gotcha so this will go through court. So step 1 will be EOIR 42, then court may on discretion grant verbal approval and then after many years get a Green Card.

 

Is the assumption correct?

[OldUser 8,392]

Just now, Meingandu said:

Gotcha so this will go through court. So step 1 will be EOIR 42, then court may on discretion grant verbal approval and then after many years get a Green Card.

 

Is the assumption correct?

My understanding is, it's best to demonstrate to court that you have a path to LPR status based on your approved VAWA and ask to terminate removal proceedings so that USCIS could adjudicate I-485.

 

You may need a lawyer to pull this off.

 

This is not a legal advice and I'm not a lawyer. Good luck!

[Demise 1,385]

22 hours ago, Meingandu said:

Hello posting a scenario so see what are everybody's thoughts.

 

Given that an individual had a legal status, got married filed i130 and it got denied, now the individual fell out of legal status and was put on removals and had court date and filed EOIR-42B.

 

Filed vawa and given that vawa gets approved, will the individual have to get the 485 with the court or USCIS?

 

So those things are similar but unrelated and can run at the same time. In removal proceedings seeking VAWA you've generally got two options and you can both:

 

You can file I-360 with USCIS and file I-485 with the court. Jurisdiction over I-360 always rests with USCIS. Jurisdiction over I-485 rests either with USCIS (not in removal proceedings or not in pre-1997 deportation proceedings) or with the Immigration court (if in removal/deportation proceedings).

 

You can also file EOIR-42B to seek cancellation of removal, which is what you've done in this case.

 

Now, both of these have similar but not identical requirements, cancellation of removal for example lets you get around the 2 year deadline to file after death/divorce, it also allows you to seek adjustment even if you were never married to the abuser as long as you have a child together, cancellation of removal also requires a finding of extreme hardship with VAWA cases.

 

 

 

So what now, well you've got a few options:

 

1. You can file I-485 with the court, refer to this instruction sheet: https://www.uscis.gov/sites/default/files/document/legal-docs/DEFA-pre-order-instructions.pdf or,

2. Alternatively if you don't mind abandoning the EOIR-42B you can file a motion to terminate with the immigration court, and if you get that then removal proceedings will end and you can just file I-485 with USCIS.

 

 

20 hours ago, Meingandu said:

Gotcha so this will go through court. So step 1 will be EOIR 42, then court may on discretion grant verbal approval and then after many years get a Green Card.

 

Is the assumption correct?

To answer this directly, no that's not exactly correct.

I-360/I-485 and EOIR-42B are two different processes, both result in a green card but they're independent from each other. There is no requirement for you have a pending EOIR-42B to file I-485 with the court. Nor does an EOIR-42B require an I-485, if an EOIR-42B is approved then that approval will result directly in an issuance of a green card.

Edited Saturday at 02:05 PM by Demise

[TBoneTX 46,602]

It is Sunday, and time for our ever-hilarious (and too-rarely upvoted) Official Weekly VAWA-Thread Joke:

===========================================

A LITTLE GIRL FEELS SICK AT CHURCH

 

A little girl was in church with her mother when she started feeling ill.

 

"Mommy," she said, "can we leave now?"

 

"No," her mother said.

 

"Well, I think I have to throw up!" exclaimed the girl.

 

"Then go out the front door and around to the back of the church and throw up behind a bush," said her mother.

 

After about 60 seconds, the little girl returned to her seat.

 

"Did you throw up?" her mother asked.

 

"Yes," the little girl said.

 

"How could you have gone all the way to the back of the church and returned so quickly?" her mother asked.

 

"I didn't have to go out of the church, Mommy," smiled her little girl proudly.  "They have a box next to the front door that says, 'For The Sick.'"

 

[Mahi Bansi 8]

Hello family!

 

I hope you’re doing well. I have a question: My I-131 is approved. I have no criminal record but I have unlawful presence before I filed my I-130 (before I applied for VAWA). Due to current administration, is it safe to go and visit home country (only for 3 weeks)? Please let me know your thoughts. @Sandra G. @Demise @Pinkrlion @TBoneTX

Thanks so much! 😊

[Sandra G. 5,080]

10 hours ago, Mahi Bansi said:

Hello family!

 

I hope you’re doing well. I have a question: My I-131 is approved. I have no criminal record but I have unlawful presence before I filed my I-130 (before I applied for VAWA). Due to current administration, is it safe to go and visit home country (only for 3 weeks)? Please let me know your thoughts. @Sandra G. @Demise @Pinkrlion @TBoneTX

Thanks so much! 😊

Under the new administration, anything can happen. I advised my clients not to travel, but one of them just returned from a trip to Turkey and had no issues reentering.

[Demise 1,385]

10 hours ago, Mahi Bansi said:

Hello family!

 

I hope you’re doing well. I have a question: My I-131 is approved. I have no criminal record but I have unlawful presence before I filed my I-130 (before I applied for VAWA). Due to current administration, is it safe to go and visit home country (only for 3 weeks)? Please let me know your thoughts. @Sandra G. @Demise @Pinkrlion @TBoneTX

Thanks so much! 😊

Honestly in general I'd recommend just avoiding unnecessary travel until you have the green card in hand, however Matter of Arrabally (BIA, 2012) remains controlling and travel on AP doesn't trigger unlawful presence related re-entry bans.

Only real concerning scenario that could happen is the current administration trying another blanket ban if you're from one of the countries they don't like (like the prior muslim ban) since those did exempt permanent residents but were completely silent on those in possession of advance parole.

[Meingandu 6]

On 3/22/2025 at 10:05 AM, Demise said:

 

So those things are similar but unrelated and can run at the same time. In removal proceedings seeking VAWA you've generally got two options and you can both:

 

You can file I-360 with USCIS and file I-485 with the court. Jurisdiction over I-360 always rests with USCIS. Jurisdiction over I-485 rests either with USCIS (not in removal proceedings or not in pre-1997 deportation proceedings) or with the Immigration court (if in removal/deportation proceedings).

 

You can also file EOIR-42B to seek cancellation of removal, which is what you've done in this case.

 

Now, both of these have similar but not identical requirements, cancellation of removal for example lets you get around the 2 year deadline to file after death/divorce, it also allows you to seek adjustment even if you were never married to the abuser as long as you have a child together, cancellation of removal also requires a finding of extreme hardship with VAWA cases.

 

 

 

So what now, well you've got a few options:

 

1. You can file I-485 with the court, refer to this instruction sheet: https://www.uscis.gov/sites/default/files/document/legal-docs/DEFA-pre-order-instructions.pdf or,

2. Alternatively if you don't mind abandoning the EOIR-42B you can file a motion to terminate with the immigration court, and if you get that then removal proceedings will end and you can just file I-485 with USCIS.

 

So running both in parallel EOIR 42B with court, and I-360 with USCIS will have different out comes. Lets say the individual is in removal, and if the I-360 gets approved, then what? Who should 485 should be filed with? My assumption is USCIS but it would not adjudicate it until removal is taken off. So for removal it has to have EOIR 42B approved which will result in termination of removal. And then file 485 with USCIS. The times with USCIS is faster than court I believe, as court may give verbal approval but due to limited number of GC it will take years to actually get one. Given that attorney had filed under category C10 then the 4000 GC Cap does not apply as per the chart below 

[Demise 1,385]

1 hour ago, Meingandu said:

So running both in parallel EOIR 42B with court, and I-360 with USCIS will have different out comes. Lets say the individual is in removal, and if the I-360 gets approved, then what? Who should 485 should be filed with? My assumption is USCIS but it would not adjudicate it until removal is taken off. So for removal it has to have EOIR 42B approved which will result in termination of removal. And then file 485 with USCIS. The times with USCIS is faster than court I believe, as court may give verbal approval but due to limited number of GC it will take years to actually get one. Given that attorney had filed under category C10 then the 4000 GC Cap does not apply as per the chart below 

 

VAWA Cancellation of Removal (EOIR-42B) is subject to the 4,000/yr cap.

VAWA Adjustment of Status (I-360/I-485) is either not subject to numerical caps or gets counted into F2B (depending if the spouse was a US Citizen or an Permanent Resident).

 

Honestly, the best solution in this case would be to motion for a termination with the court and then file I-485 with USCIS.

 

Second alternative is to file I-485 with the court, you first file just the form I-485 (and possibly filing fee, not sure if they want one) with USCIS's Irving, TX lockbox. They will issue you a receipt notice. Then you take the receipt notice and file the I-485 and all related documentation with the court. Then the actual review of the I-485 will happen in court during an individual hearing, with the judge issuing a decision on the I-485. Then once a judge approves it, you wait a few days, schedule an infopass appointment, bring the judge's order and the I-485 receipt notice to the infopass, they will mark off the I-485 as approved, and print you your green card.

 

Either way, Cancellation of Removal is likely heavily backlogged, so going via I-485 with either USCIS or the court will be faster.

Edited 1 hour ago by Demise