USCIS Memo (04/11/2008) Adjustment of status for VAWA self-petitioner who
is present without inspection
TO: Field Leadership
FROM: Michael L. Aytes /s/ Donald Neufeld
Acting Associate Director, Domestic Operations
SUBJECT: Adjustment of status for VAWA self-petitioner who is present without
Revision of Adjudicator’s Field Manual (AFM) Chapter 23.5
(AFM Update AD08-16)
This memorandum provides guidance to USCIS adjudicators for adjudicating
adjustment of status applications filed by VAWA self-petitioners who are
present in the United States without having been inspected and admitted
As a general rule, an alien seeking adjustment of status under section
245(a) of the Immigration and Nationality Act (“the Act”),
8 U.S.C. § 1255(a), must have been inspected at a port-of-entry and
either admitted or paroled into the United States. Under section 245(a)(2)
of the Act, the adjustment applicant must also be admissible as an immigrant.
Section 212(a)(6)(A) of the Act renders inadmissible an alien who is present
in the United States without inspection. Section 212(a)(6)(A)(ii) of the
Act, in turn, provides for a waiver of inadmissibility for a VAWA selfpetitioner
who can show a “substantial connection” between the VAWA self-petitioner’s
unlawful entry and the VAWA self-petitioner’s having been subjected
to battery or extreme cruelty. Thus, section 245(a) provides two separate
bars to denying adjustment of status, in the case of an alien who is present
In October 2000, section 1506(a) of Public Law 106-386 amended section
245(a) of the Act so that the “inspection and admission or parole”
requirement does not apply to an alien who is seeking adjustment of status
as a VAWA self-petitioner. Section 1506(a), therefore, eliminated at least
one bar to granting adjustment of status to a VAWA self-petitioner. Public
Law 106-386 did not, however, specify what effect, if any, the amendment
to the introductory text in section 245(a) should have on the second bar
to granting adjustment of status. In particular, section 106-386 amended
neither section 245(a)(2) of the Act, which requires an adjustment applicant
to be admissible, nor the inadmissibility ground in section 212(a)(6)(A)(i)
of the Act.
Effective immediately, USCIS interprets the introductory text in section
245(a) of the Act as effectively waiving inadmissibility under section
212(a)(6)(A)(i) of the Act for any alien who is the beneficiary of an
approved VAWA self-petition. All USCIS adjudicators will follow this interpretation
in adjudicating a VAWA self-petitioner’s adjustment of status application.
USCIS adjudicators will also deem this changed interpretation to be a sufficient
basis to accept and approve, without filing fee, a motion to reconsider
or reopen a VAWA self-petitioner’s adjustment application the VAWA
self-petitioner filed the application on or after January 14, 1998, and
USCIS denied the application solely because the VAWA self-petitioner was
inadmissible under section 212(a)(6)(A) of the Act.
3. Field Guidance and Adjudicator’s Field Manual (AFM) Update
The adjudicator is directed to comply with the following guidance.
1. Chapter 23.5 of the AFM entitled, “Adjustment of Status to Lawful
Permanent Residence,” is amended by adding a new section (k), “VAWA-based
Adjustment of Status Applications.”
23.5 Adjustment of Status under Section 245 of the INA
(k) VAWA-based Adjustment of Status Applications. Under section 245(a)
of the Act, the alien beneficiary of a VAWA self-petition may apply for
adjustment of status even if the alien is present without inspection and
admission or parole. USCIS has determined that this special provision
in section 245(a) of the Act, in effect, waives the VAWA selfpetitioner’s
inadmissibility under section 212(a)(6)(A)(i) for purposes of adjustment
eligibility. Thus, a USCIS adjudicator will not find, based solely on
the VAWA selfpetitioner’s inadmissibility under section 212(a)(6)(A)(i),
that the VAWA self-petitioner cannot satisfy the admissibility requirement
in section 245(a)(2) of the Act. The VAWA self-petitioner is not required
to show a “substantial connection” between the qualifying
battery or extreme cruelty and the VAWA self-petitioner’s unlawful entry.
As with adjustment applicants under section 245(i) of the Act, this interpretation
applies only to inadmissibility under section 212(a)(6)(A) of the Act.
Cf. Matter of Briones, 24 I&N Dec. 355 (BIA 2007). A VAWA self-petitioner
who, by repeated violations of the Act, has made himself or herself inadmissible
under section 212(a)(9) of the Act may obtain adjustment of status only
if the VAWA self-petitioner applies for, and obtains, the related form
of relief from inadmissibility. Cf. section 212(a)(9)(A)(iii), (B)(III)(iv),
(9)(C)(iii) of the Act.
2. Current section 23.5(k), “Precedent Decisions Pertaining to Adjustment
of Status,” is re-designated as section 23.5(l).
4. Contact Information
Questions regarding this memorandum may be directed to Amanda Atkinson,
Office of Policy and Strategy, or David Tu, Service Center Operations.
Inquiries should be vetted through appropriate supervisory channels.
Field Office Directors
Service Center Directors
National Benefits Center Director