Visa Waiver Overstay Adjustment of Status Update November 2013

Great news to report about Visa Waiver Overstays and Adjustment of Status. USCIS has finally issued policy guidance on adjudication of adjustment of status (green card) applications filed by individuals admitted under the Visa Waiver Program (VWP). Until now, USCIS offices throughout the country have been inconsistent in adjudication of visa waiver overstay adjustment of status applications with some offices consistently granting adjustment of status and with the others outright denying such applications in the exercise of discretion without consideration of the equities and without providing any reasons for the denial. Our last update on this subject was from January 2012 and it left the subject very unclear.

The guidance issued by USCIS on November 14, 2013 is binding on all USCIS offices and is designed to ensure consistency in adjudication of VWP adjustment applications throughout the country. The following is a summary of the new guidance as prepared by Attorney Ekaterina Powell from our office.

What is Visa Waiver Program

Nationals of certain countries are allowed to use VWP to enter the U.S. without a visa for up to 90 days for business or pleasure. By using this program, the foreign national agrees to waive the right to contest removal from the U.S. other than on the basis of asylum. Removal of visa waiver entrants, with limited exceptions in the Ninth Circuit, is effectuated by Immigration and Customs Enforcement (ICE) without referral to the immigration judge. The jurisdiction over the adjustment of status application, even after the removal order is issued, remains with USCIS.

Visa waiver entrants cannot extend their status or switch to another visa while in the U.S. Visa waiver entrants are ineligible to adjust status to that of a permanent resident (green card holder) unless the visa waiver entrant is an immediate relative (spouse, unmarried child under 21 or parent) of a U.S. citizen.

Thus, an individual who is an immediate relative of a USC is statutorily not precluded from adjusting status in the U.S. even after the VWP period of 90 days has expired. Whether to grant adjustment to an eligible applicant is a matter of discretion exercised by USCIS.

Policy of USCIS – Procedures for Adjudication and Grant of Adjustment of Status for Visa Waiver Overstays

USCIS offices have been instructed to adjudicate and consider in the exercise of discretion adjustment of status applications filed by VWP entrants who are immediate relatives of U.S. citizens, including those applications that were filed after the expiration of the 90-day period of admission.

Adjudication of such adjustment applications by USCIS shall occur unless:
• ICE has issued a removal order (provided that ICE has not agreed to rescind or withdraw the order)
• The adjustment applicant is under investigation for, has been arrested for (without disposition) or has been convicted of an egregious public safety offense, or
• There are fraud and/or national security issues that require resolution.

Thus, considering the above-stated grounds, the Policy Memorandum describes only a handful of cases where USCIS should not adjudicate and should deny as a matter of discretion adjustment of status applications filed by immediate relatives of U.S. citizens admitted under the visa waiver program. While the Memorandum does not clearly state that absent significant negative factors the adjustment applications filed by VWP entrants who are immediate relatives of USC shall be approved as a matter of discretion, it can reasonably be implied from the overall purpose of the memorandum.

VWP Applicants Who are Refused Admission into the U.S.

A visa waiver entrant who is refused admission into the U.S. can be removed. A refused applicant is not entitled for an appeal or a review of the refusal of admission.

If the entrant was refused admission under the visa waiver program and was subsequently detained, adjustment of status application cannot be approved unless the applicant has been released from custody on humanitarian parole under INA section 212(d)(5)(A).

Nevertheless, as stated in the Memorandum, refusal of admission under VWP, in conjunction with any other negative factors and in the absence of favorable equities, can weigh against a finding that the applicant merits a favorable exercise of discretion.

Denied Adjustment of Status Applications

A VWP overstay whose case is denied by USCIS has no appeal rights and may not contest removal before an immigration judge, with the certain exceptions in the Ninth Circuit.

Within the Ninth Circuit jurisdiction, a VWP overstay who is an immediate relative of a U.S. citizen and who files the adjustment application during the 90-day period of admission is entitled to be placed in removal proceedings before the immigration court. If, however, the adjustment is filed after the 90-day period of admission, the VWP overstay is not entitled to the removal proceedings and will be referred to ICE for consideration of the removal order.

Here is a link to the USCIS Memo Download file

Feel free to contact us with any questions.