VAWA Case Denied? Here’s How to Save It

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VAWA Case Denied? Here’s How to Save It

If your VAWA case has been recently denied by USCIS, you may think that your entire case is over and that there is no more chance of getting a green card, but is that necessarily true?

My name is Moumita Rahman and in my 14 years as an immigration attorney, I have filed thousands of VAWA applications and we have an extremely high approval rating.

So these experiences have taught me why USCIS may tend to deny a VAWA case, why they may tend to issue requests for evidence, and what are some of the qualities that cause cases to get approved. My hope is that by knowing this information, this will help you save your VAWA case from getting denied.

Top Reasons for Denials

So what are some of the top reasons why your VAWA case may have gotten denied in the first place?

Number one: d USCIS may say that you have not shown sufficient evidence of extreme cruelty or battery, aka they may say that you have not actually proven that you have been abused during the course of your marriage. If you get a denial that says this, it may feel particularly horrible because you know what you have been through, and you know what you have suffered. So why would USCIS say that you have not shown enough evidence of abuse?

Well, when I see that a case gets denied for being unable to prove extreme cruelty or battery, the number one culprit is the affidavit. So what is the number one quality that I see in affidavits in cases that get their VAWA denied? And that quality is that the affidavit lacks detail. We need to give just the right amount of detail to immigration to show the pattern of abuse that you have suffered, but not just that. It's not enough to just list out every instance of abuse.

You do have to take it one step further to show how your spouse's actions have actually controlled you. Your affidavit needs to demonstrate what sort of actions did your spouse take to make you do what they want, what sort of things that they say to prevent you from doing things out of fear. These are the sorts of patterns that you want to show in your affidavit. So even though an act by itself may not seem to be violent or coercive, when taking into account of the whole pattern of treatment that the spouse is given and the effect that it has had on you, that is what you need to demonstrate in your affidavit with just enough detail.

And if you're worried about how much detail you need to include, sometimes include as much as you can and then that is the best way to get your case forward. If you're working with my team, we don't include every single detail because we do not want to overwhelm the immigration officers when they are quickly reviewing the case. So we include just enough to show the pattern of control that your spouse has had over your life and the harmful effect it has had on you. The second problem that your affidavit may have is that it may not have enough information to show how you were in a good faith marriage. Now what exactly is a good faith marriage?

A good faith marriage is any marriage that was entered into for the purpose of joining lives together and not just for the singular purpose of obtaining an immigration benefit. And how is it possible that your affidavit may fail to show this? Well, number one, you may not give enough details to describe how the relationship started, how you met, what you guys did together, what you felt about each other, how talks about marriage came up, and how you ended up deciding to get married. These are actually very very important details to include in your VAWA affidavit, which, again, I have seen many cases get denied for the reason that not enough was shown to demonstrate a good faith marriage.

Next, the other most common reason why an affidavit may be a bad affidavit in your VAWA case, thereby causing it to get denied, is because of the fact that you failed to demonstrate how and where and when you and your spouse shared a joint residence together. Now many people ask me how much evidence do I need for my VAWA case? And they're very very worried about how much evidence to actually give.

In reality, you actually don't need that much evidence, and you actually don't need any evidence as long as your affidavit is good because the standard that immigration must use in deciding your VAWA case is "any credible evidence". That means that as long as there is no internal inconsistency, neither is there any external inconsistency that can be found online or through public records that contradict what you say in your affidavit, that is credible evidence that must be used. However, there's two things that I have seen happen.

Number one, in your affidavit it may not clearly actually state how, when, and where you and your spouse lived together. And number two, here's where the evidence part comes in. You may actually have included evidence in your case that contradicts the shared residency that you had with your spouse.

For example, if you say that you lived with your spouse from January until July, yet you submit evidence of showing that you lived with your spouse in August, that may create an inconsistency and a credibility issue that may then cause your case to get denied.

So is the affidavit all that you need or do you need to actually have evidence? And like I said, you don't need to have as much evidence as you think. If you cannot prove shared residence because you have no joint bills or no joint tax returns or no joint bank accounts, rest assured your case won't get denied just because of that. Because again, as long as we address some of this information and history inside your affidavit, you will usually be okay.

And of course, there's all sorts of other secondary evidence that you may be able to submit, such as witness statements, public searches online, photographs, and also you can even do a psychological evaluation.

Although it has not been my experience to see cases get denied for a lack of evidence, rather it is because of a lack of sufficient information inside the affidavit that may cause the case to get denied, combined with evidence that may be contradictory or inconsistent with the information that you have provided on your affidavit or your forms.

If you have previously submitted applications to immigration that contradict the information that you provide to immigration for your VAWA application, that can also be another reason why your case gets denied.

Because what happens is that if you have said in your previous I-485 application that you lived with your spouse from July until August in New York City in the year 2024, however, in your VAWA application a year later after your case gets denied, if you write that you only lived with your spouse until March of 2024, then they will look back at that application and see that inconsistency, and they will challenge your case and possibly deny if there are too many inconsistencies that you cannot explain.

And keep watching because I will talk more about how to address inconsistencies later in this video.

Now another reason why I see cases get denied is because your marriage may not be valid. That's right, one of the most important requirements in a VAWA spouse application is for you to be in a valid marriage to a U.S. citizen or to a green card holder. But this may not have been your first marriage and if it's not your first marriage, how exactly can that harm your case?

Well, you must show to immigration that you were free to marry your spouse upon whom you are making this case. But if you cannot prove that you were properly divorced from your previous spouses, then your current marriage will not be considered to be valid for immigration purposes. Unfortunately, I have seen many people come to my office with denials because of this.

For example, if you got married in your home country and you paid a lawyer to help you get divorced back home, you need to be very careful because there's always a possibility that that lawyer that you hired did not actually get you a proper divorce and instead scam you and took your money and gave you a fake divorce certificate.

Also, you must make sure that wherever you get divorced, whether it's inside the United States or in a country outside, you must make sure that you follow the rules and the laws about how to obtain a divorce. Sometimes there are waiting periods after a judge signs the order where you must wait a period of time before you get remarried.

Other times there might be additional filings that need to be made and other times you may have needed to live in that state or country for a certain period of time in order for the jurisdiction to be proper. You must consult with an attorney in that state or in that country to make sure that your divorce documents are in order.

Now, what happens if you get denied?

Appeal the Decision

What options do you have? Well, number one, you may be able to appeal your denial. Appeals can usually be done for one of two reasons. One, it could be based upon an error of law or two, an appeal can be made if there is new information that shows that the decision should be reversed. It's really best to work with an attorney to determine which type of appeal is the best for you. Sometimes it may be both.

A lot of times I would say that USCIS may issue a decision that is not correct based upon their interpretation of law and that's where a good lawyer who can help you fight back can help with that. And I would say that this may be worth it, especially if they denied you on the basis of not having a good faith marriage or of not showing enough extreme cruelty or battery.

But what happens if they say that your VAWA is denied because you don't have shared residency or you don't have a qualifying marriage because your previous divorce was never properly gotten? Then, in that case, an appeal may not be the best investment of time and you may want to look at another option like a T visa, which is another common option for a lot of VAWA applicants because in your domestic relationship you may have suffered trafficking by your spouse as well.

Also, if it's clear that USCIS misinterpreted your information, that might be another good reason to appeal the denial. Also, there might be updates or changes in the law or policy and one update that I can tell you about is that the shared residency requirement has slightly changed over the past two years. Previously, shared residence would only count if it occurred during the course of the actual marriage. That means that in the past, VAWA cases would get denied if a person had not been married to their abuser and been living with them after the date of marriage.

But due to some recent changes, an applicant for VAWA can have lived with their abuser anytime during the course of the relationship, whether it's before marriage or after the marriage date, it no longer matters. And if your case was denied on that basis, then you may be able to appeal that successfully.

And next, you may be able to file an appeal based upon new information that has now become available to you, such as unavailable witnesses or evidence of new abuse or new evidence that you have found to show that you are eligible for VAWA. Keep in mind that appeals do have deadlines and if that deadline has passed, then you may no longer be eligible for appeal. In addition, appeals generally take a minimum of one year to decide, which brings me to my next option if your VAWA case hasn't denied.

One good solution is to just refile your case.

Refile Your Case

Sometimes, appealing a denial is not always as fruitful. It may be better to refile the whole case, but you must first see whether you are still eligible for VAWA.

One of the most important requirements for a VAWA application is that you either be currently married to a U.S. citizen or to a green card holder or you must be recently divorced and your divorce date cannot be older than two years.

Consider Other Options

Thus, if by the time your I-360 VAWA application gets denied, you have already been divorced for more than two years, you may no longer be eligible to apply for VAWA and in this circumstance, I would say it would be good to get evaluated for a T visa application to see if anything happened during the course of your marriage that may qualify you as a trafficking victim.

But if you are still married or if your divorce date is still within the two-year deadline, then I would say it is okay to refile. Your previous denial will not count against you. However, any inconsistencies or issues that you had in your first application should be addressed in your second application so that everything is properly explained and blocked. Now why should you refile instead of appealing?

Well, let's put it this way, when you ask to reopen a case or you ask to reconsider a case. Through an appeal, you're basically asking immigration to look at what's already on the record and look at the fact that they may have been wrong or that there may be new evidence. So it's not really starting over, it's basically just getting them to look at your case a second time.

But on the other hand, when you refile, it is starting over and you can actually refile your case with improved affidavits, improved evidence, and better corroborating information for a stronger application. And any mistakes that you had made in your previous application can be corrected at this time as well. Again, make sure you include explanations about the inconsistencies or errors so that new problems are not created in your second case.

And of course, if you're working with an immigration lawyer such as myself or somebody else who's really good, having stronger representation from somebody who knows what they're doing is going to make all the difference in filing that second case. Now we have discussed the T visa as a possible option, but I also want to mention that the U visa may also be another option if your VAWA case got denied and you are no longer eligible to refile.

Now to be eligible for the U visa, it would normally require that you have suffered some sort of domestic violence in your relationship where you had actually called the police and made a report. And for this, we would need to get a certification from that law enforcement agency as well. The U visa case is very, very different and it has a much longer timeline than the T visa or VAWA applications and can take five to ten years.

However, it's still an option even if it takes a long time. So if you refile a second time, how can you make sure you're successful this time?

Tips For Success

Number one, make sure there are no inconsistencies in your application. I promised you earlier that I would explain how to address inconsistencies. Well, if you do get a request for evidence, explain the inconsistency. Sometimes it's just clear error, sometimes you forgot or you got confused about a detail. You can explain a lot of these things, but if you're refiling a second time, make sure there are no inconsistencies. Make sure your record is clean and consistent from start to finish.

That is one of the reasons why in my office we take our time to go through every application and we have multiple layers of review to try to prevent inconsistencies that may occur.

Next, you can gather better and more evidence and of course you can have a better affidavit. Again, if you're working with a law firm like us, that is one of the things that we take a lot of pride in is the quality of our affidavits and for me this is the winning formula of our cases. Now, if your VAWA case was previously denied, that means even if you file a second time on a very good application, your second application may still get highly scrutinized because of the prior application to determine any inconsistencies. Therefore, this is an optimal time to get a lawyer to help you on your case.

A good attorney will understand exactly why your case is previously denied and what we can do going forward to ensure that you have success. As I said, I have filed thousands of VAWA applications and helped thousands of immigrants throughout the U.S..

If you would like my help on your case, call us at 212-248-7907 to schedule a case evaluation. I am based in New York but I work with clients all over the United States.

And if you want to learn more secrets about how to get your VAWA case approved, make sure you stay tuned to watch my video on the 12 VAWA Secrets That Other Lawyers Won't Tell You.

In it, I'll share certain truths about VAWA applications that other attorneys don't like to talk about such as leaving the country, police reports, and filing without evidence of physical abuse.

Click to watch it next and I'll see you there

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