Adjustment of Status for Alien Immediate Relatives Admitted Under the Visa Waiver Program – USCIS and AILA update June 2011

Following our updates on the Visa Waiver Adjustments, here is a summary from USCIS Headquarters Liaison Meeting. As of now, USCIS has not yet provided guidance to the field with respect to the eligibility of an alien who was admitted under the Visa Waiver Program (“VWP”) to adjust status as an immediate relative under INA § 245 at any time prior to the removal of the alien under INA § 217.

Several USCIS District Offices are holding in abeyance immediate relative adjustment of status applications by applicants who entered under the Visa Waiver Program and whose VWP 90-day admission expired prior to the filing of the Form I-485, and at least one district (San Diego, California) is intending to deny such applications.

The Solicitor General has acknowledged the adjustment eligibility of an alien admitted under the VWP in a brief in opposition to certiorari filed in Bradley v. Holder, Case No. 10-397 (AILA Doc. No. 10122752). 5 In the brief, the Solicitor General acknowledged at page 9:
In general, VWP aliens are excepted from eligibility to seek adjustment of status, but those who qualify as immediate relatives fall within an exception to the exception. See 8 U.S.C. 1255(c)(4). Immediate relatives therefore are subject to the general rule that DHS may grant adjustment of status, “in [its] discretion and under such regulations as [it] may prescribe.” 8 U.S.C. 1255(a).

But nothing in that general rule, or in Section 1255(c)(4), provides that VWP aliens who are immediate relatives must be able to seek adjustment of status in removal proceedings. To the contrary, as the court of appeals explained, VWP aliens have waived any opportunity to use adjustment of status, or any ground except an application for asylum, to challenge removal. Pet. App. 15a (citing Bayo, 593 F.3d. at 507). (Emphasis added).

In this brief, the Department of Justice confirms that USCIS may continue its longstanding policy of adjudicating applications to adjust status for immediate relatives who have entered and overstayed a VWP admission, and those applications may be approved in its discretion.

Notably, the opinions of the Solicitor General, when made to the United States Supreme Court, are the position of the United States. In his brief to the Supreme Court, the Solicitor General synthesized the rules of law from the different courts of appeal decisions such as Bradley v. Attorney General, __ F.3d __, 2010 WL 1610597 (CA3 April 22, 2010); McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009); Nose v. Attorney General of the U.S., 993 F2d 75 (CA5 1993); Lacey v. Gonzales, 499 F.3d 514 (6th Cir. 2007); Bayo v. Napolitano, 593 F.3d 495 (CA7 2010) (en banc); Lang v. Napolitano, 596 F.3d 426 (CA8 2010); Zine v. Mukasey, 517 F.3d 535 (CA8 2008); Freeman v. Gonzales, 444 F.3d 1031 (CA9 2006); Momeni v. Chertoff, 521 F.3d 1094 (CA9 2008); Ferry v. Gonzales, 457 F.3d at 1117 (CA10 2006); and Schmitt v. Maurer, 451 F.3d 1092 (CA10 2006).

Central to several of the cases is that the aliens in each were attempting to interpose adjustment of status as a defense to removal. The courts found that they waived the right to do so by gaining admission under the VWP. While we are aware that courts in McCarthy, Momeni, and Bayo state that VWP aliens who overstay their 90-day periods of admission are ineligible to adjust, those pronouncements were outside the scope of issues before those courts.

Moreover, courts in McCarthy, Momeni, and Ferry, state that VWP aliens only forego the right to contest removal through adjustment, not the right to adjustment through proceedings before USCIS, even when filing for adjustment after the expiration of the 90- day period. In McCarthy, the court says: “The Sixth, Eighth, and Tenth Circuits have also concluded that aliens who file for an adjustment of status after the expiration of the ninety-day period waive their right to contest a subsequent removal order.” (Italics added.)
The Ninth Circuit in Momeni holds: “An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum).” (Italics added.) Similarly, the Ferry court says: “It is evident under the applicable statutes and regulations that a VWP alien who overstays his authorized time and is ordered removed has waived his right to contest that removal through an application for adjustment of status.” (Italics added.) Each is silent as to eligibility to adjust administratively before the USCIS. That is as it should be.

AILA requests that USCIS immediately provide guidance to the field clarifying that an alien admitted under the Visa Waiver Program may adjust status as an immediate relative notwithstanding the filing of the Form I-485 adjustment application after the expiration of the VWP alien’s period of admission.

As it stands today, the agency agrees that I-485s under these circumstances should be adjudicated unless the potential beneficiary is the subject of an INA section 217 removal order. An update to the AFM is being prepared, and guidance will be issued to the field. We will keep you posted.