VAWA Self-Petitioner with Approved I-360 — Why I-485 Jurisdiction Shifts to EOIR After an NTA, and How to File the I-601 Vaccine Waiver

IMMIGRATION LAW · SONG LAW FIRM SUCCESS STORY

Client Profile

• Case type: VAWA (Violence Against Women Act) self-petitioner.
• Status: I-360 VAWA petition approved.
• Relief sought: I-485 adjustment of status plus an I-601 waiver of inadmissibility (religious objection to vaccination).
• Procedural history: USCIS rejected the client's I-485 and I-601 filing for lack of jurisdiction. The client is in EOIR proceedings with a hearing scheduled for January 5, 2028.

Case Background

In late August 2026 the client retained Song Law Firm after USCIS rejected her I-485 and I-601 filing. Three questions were decisive: whether USCIS's "no jurisdiction" rejection is legally correct; if it is, how the I-485 and I-601 should actually be adjudicated; and how to use the January 5, 2028, hearing to secure that adjudication.

Legal Issues

First — why the USCIS rejection is correct. Under INA 240(a)(3) and 8 CFR 1240.1(a), exclusive jurisdiction over adjustment of status for a noncitizen in removal proceedings lies with the immigration judge, not USCIS. USCIS has adjustment jurisdiction only over applicants who are not in removal proceedings. The client, who received a Notice to Appear and is now in EOIR proceedings, falls on the EOIR side of the line, so USCIS was right to refuse to adjudicate. The rejection is not a denial — it is a jurisdictional rejection. Her underlying eligibility for I-485 and I-601 is intact; only the forum changed.

Second — how EOIR adjudicates I-485 and I-601. Under 8 CFR 1245.2(a)(1)(i), a respondent in removal proceedings files I-485 as a defensive application before the IJ. The procedural anchor is the Master Calendar or Individual Calendar hearing. The IJ has authority to adjudicate the I-601 waiver along with the I-485; the derivative waiver authority is well-established in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), and Matter of Rivera-Peraza, 26 I&N Dec. 365 (BIA 2014).

Third — what the January 5, 2028, hearing is. The notice has to be read to confirm whether the hearing is a Master Calendar or an Individual Calendar hearing. The initial hearing in a case is almost always a Master Calendar, which is for pleadings, declaring relief, and setting a schedule; the Individual Calendar is where the IJ takes evidence and testimony.

At the Master Calendar the respondent (a) answers the NTA with pleadings, (b) declares an intent to file VAWA-based I-485, (c) declares an intent to file I-601, (d) sets a filing calendar, and (e) requests the Individual Calendar date.

Fourth — the religious vaccination waiver. INA 212(a)(1)(A)(ii) makes vaccination refusal a ground of inadmissibility. INA 212(g)(2)(C) authorizes a waiver when the refusal is based on religious belief or moral conscience, provided the belief is sincere and long-standing. The immigration judge has authority to adjudicate the 212(g) waiver.

Fifth — VAWA-specific protections. INA 204(a)(1)(J) and 245(a), together with USCIS Policy Manual Vol. 3 Pt. D, give a VAWA self-petitioner (a) the ability to adjust without the abuser spouse's cooperation, (b) relaxed inspection/parole requirements, and (c) automatic or discretionary waivers for several 212(a) grounds. The protections carry over into EOIR proceedings.

Song Law Firm Strategy

Song Law Firm built a staged plan.

• Stage 1 — Confirm the EOIR record. Determine whether the January 5, 2028, hearing is a Master Calendar or Individual Calendar hearing, identify the venue (likely NY or NJ) and judge, and set up ECAS/EOIR Automated Case Information System monitoring.
• Stage 2 — Master Calendar strategy. Before the hearing, (a) file EOIR-28 appearance, (b) prepare pleadings, (c) complete the I-485/I-601 package, and (d) collect the I-360 approval and the VAWA bona fides record.
• Stage 3 — I-601 waiver evidence. For the religious vaccination waiver: (a) proof of religious community membership and activity, (b) affidavit from a religious leader, (c) past records of vaccine refusal (medical or school), and (d) a memorandum explaining the doctrinal basis of the belief.
• Stage 4 — I-485 package. VAWA-based I-485 is treated as immediate relative; priority date is current. Filing kit: Form I-485 (VAWA box checked), I-485 Supplement A (if applicable), civil documents, I-693 civil surgeon examination noting the pending waiver, and I-864W (VAWA affidavit-of-support exemption).
• Stage 5 — Prepare for Individual Calendar. After Master Calendar, request an Individual Calendar date and prepare direct testimony from the client, religious leader testimony, and any expert witnesses. The IJ can grant I-485 and I-601 at the same hearing.

Current Status

• Initial consultation and case analysis completed in mid-October 2026. Song Law Firm has requested the full case file (NTA, I-360 approval, EOIR hearing notice, USCIS rejection).
• EOIR-28 entry of appearance is being prepared. Fifteen months remain until the January 5, 2028, hearing — ample time for document preparation, evidence collection, and witness coordination.
• Draft I-485 and I-601 packages are in progress along with religious-belief evidence collection.
• Pre-hearing status conferences will be requested where the local court allows them.

Lessons

• A VAWA self-petitioner in removal proceedings cannot file I-485 or I-601 with USCIS — exclusive jurisdiction is with EOIR. A USCIS rejection in this posture is not a denial; underlying eligibility remains intact.
• Before the IJ, I-485 and I-601 are defensive applications: filed on a schedule set at Master Calendar and decided at Individual Calendar.
• INA 212(g)(2)(C) religious vaccine waivers turn on sincerity and long-standing commitment. Religious community records, leader affidavits, and documented past refusals are the three pillars.
• VAWA self-petitioners keep core protections — I-864W and relaxed inspection requirements — in EOIR proceedings as well.
• When a long runway to the hearing is available, counsel can combine ECAS monitoring, document completion, witness coordination, and pre-hearing conference requests to walk into the Individual Calendar with both I-485 and I-601 ready for same-day grant.
• A file like this one — USCIS rejection, EOIR jurisdiction, and a religious vaccine waiver layered on top — reward early case-file analysis and a staged plan long before the hearing date.