Visa Waiver Overstay and Marriage Based Adjustment of Status – Recent developments from San Diego

Many clients have been calling my office in the past week or so, they have been reporting denials of adjustment of status applications at the San Diego District Office for applicants, that entered under the Visa Waiver program and later overstayed. The overstay took place before marriage to a US Citizen and filing the adjustment of status case.

Is this is a new trend and change in procedures, yes it is! An internal email released July 9, 2010, (I saw it today at one of my interviews but was not allowed to take a copy out) released by the San Diego District Director to all Officers processing adjustments states the following:” To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview.” The email was not very long but that was the general idea.

But why and why now? Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waive his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S.

Here is a summary about the main case that started this mess, as written by James Tyler, Esq.:

On March 31, 2008, the 9th Circuit Court of Appeals issued a problematic case in a Visa Waiver overstay case that may now present difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status. The case is Momeni v. Chertoff (No. 07-55018).

In Momeni, the foreign national entered under the Visa Waiver Program, overstayed his 90 days, later married a U.S. citizen, later was taken into custody for having violated the terms of his stay, placed in removal proceedings, and only then filed to adjust his status based on his marriage to the U.S. citizen.

Momeni tried to convince the 9th Circuit that his case was similar to the case of Freeman v. Gonzales in which the foreign national married a U.S. citizen before entering the U.S. on the Visa Waiver Program and who then filed to adjust her status during the 90 day period of her authorized stay. In Freeman, the same 9th Circuit ruled that the “no-contest” provision of the Visa Waiver program was superseded by Freeman’s legitimate opportunity to apply for adjustment of status, since she was eligible to adjust her status the very day she arrived in the U.S. because of her already-existing marriage to a U.S. citizen..

The Court said the cases were very different: “Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married
after his 90 days expired; Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired. These distinctions disqualify Momeni
from circumventing the Visa Waiver Program’s no contest clause by means of adjustment of status.” The Court was clearly concerned that it would open a floodgate of applicants if it allowed Momeni to adjust under these circumstances in which he clearly violated the terms of the Visa Waiver Program.

The result, of course, is very problematic for Mr. Momeni but it also may be problematic for others in the future. Precedential opinions from a federal Court of Appeals (especially one like the 9th Circuit that is considered to be generally sympathetic to a wide range of foreign nationals who are trying to remain in the United States) are often followed by other federal Courts of Appeals. Also, the reasoning of a precedential opinion can be used by the government to create formal policy or to issue formal memos or guidance that then controls in other similar future situations.

Up until last week, where a Visa Waiver entrant marries a U.S. citizen and then files to adjust status based on that marriage before being placed in removal proceedings for having overstayed, USCIS has been open to approving the adjustment of status application. Now, after the recent email and citing Momeni, USCIS in San Diego and in other cities take the position that only adjustment applications filed within the first 90 days of arrival (as in Freeman) are approvable and that if you wait until after the 90 days or if you wait until after you receive a Notice to Appear for Removal before you file your adjustment application, case will be denied.

What is our solutions to the Visa Waiver applicants that have overstayed and are pending adjustment? Fight each cases preferably before it gets to court. Each USCIS office have wide discretion and if the correct arguments are presented to the officer and supervisor in charge, they may be willing to allow adjustment. I fee that this is unfair, but we have to work with the system.