Visa Waiver Overstay and Marriage Based Adjustment of Status – Litigation Update January 2011

A few months ago we posted the most recent update about Visa Waiver overstay adjudications in San Diego District office and other offices, see here

In San Diego the situation is still on hold and there is no clear guidance yet. Nationwide we have some clarity. This is the update by Stephen Manning, AILA Amicus Chair & Laura Lunn, 2010 ILG Summer Immigration Litigation Fellow:

In Bradley v. Holder, the government filed a Brief in Opposition to the cert request. While it seems doubtful that the Supreme Court will grant certiorari to hear the argument given the government’s position and the general state of the law among the circuits, the government’s brief presents the position of the United States. Indeed, the brief can be cited in litigation as the considered interpretation of the statutes and policy of the United States as it comes from the Solicitor General.

The government’s brief on the issue clarifies its position on adjustment of status for applicants that entered the United States through the Visa Waiver Program (VWP), codified in 8 C.F.R. §217. The question presented was “[w]hether an alien who waived his rights under the VWP and who has overstayed the term of lawful admis­sion may contest his removal by applying for adjustment of status and demanding the right to present that appli­cation to an immigration judge in removal proceedings.” Although the government strongly opposes an applicant’s right to review under these circumstances, it delineates occasions when an individual admitted under the Visa Waiver Program has the ability to adjust their status to that of a legal permanent resident (LPR). Specifically, VWP entrants are eligible to become LPRs through “marriage or other immediate family relationship to a United States citizen.” This means that VWP entrants can file an I-130 petition for an alien relative and can also apply for adjustment of status under the I-485 application, approval of which is left up to USCIS’s discretion.

Additionally, the government’s brief acknowledges that the Department of Homeland Security (DHS) has discretion when determining whether or not to place a WVP entrant in removal proceedings. While the government did not exercise a favorable act of discretion in Mr. Bradley’s case, hope is not lost for many more individuals seeking to adjust their status through marriage after their allotted 90-day stay expires.

The government’s position in Bradley can be summarized as this: Mr. Bradley came to the United States and gained lawful entry through the VWP. It was the fifth time he entered the United States under the VWP, which indicates that he understood the terms of the program since he benefitted from it numerous times before. However, this final time he overstayed his visa and lived and worked unlawfully in the United States for ten years before he married his wife. At that point they filed an I-130 petition for an alien relative and an I-485 for Mr. Bradley to become an LPR based on their marriage. Meanwhile, the couple failed to appear for their marriage interview and USCIS denied their applications because they were deemed abandoned. The couple appealed the denial of the I-485, but the Board of Immigration Appeals (B.I.A.) denied the appeal because under the Visa Waiver Program the Board lacks jurisdiction. Subsequently, DHS placed Mr. Bradley in removal proceedings. He sought review of the order of removal which the Court of Appeals denied. The holding of the Court followed precedent set by six other circuits and determined that respondent “may not, after the expiration of his 90-day stay, adjust his status as a defense to removal.” Mr. Bradley also filed a second I-130 which was granted but USCIS denied his second I-485 application for adjustment of status. The denial was a matter of discretion and the decision was based on factors including Mr. Bradley’s “unauthorized employment in the United States and his overall disregard of the immigration laws.”
In the government’s brief in opposition, it describes the ways in which Mr. Bradley failed to follow protocol for obtaining legal status in the United States. He overstayed his visa for an extended period of time, meanwhile working illegally. When he did petition to adjust his status to that of a legal permanent resident through his marriage, he and his wife failed to attend the interview. It was only after this that DHS decided to remove Mr. Bradley from the country. The government asserts that Mr. Bradley could not adjust his status as a defense to removal after the expiration of his visa. As a VWP entrant, Mr. Bradley waived his right to a removal proceeding and therefore could not appeal to the Board when USCIS made the determination that he abandoned his application.

However, and this is the good news as a matter of law and policy: the government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust.

In Mr. Bradley’s case, USCIS weighed both favorable and negative factors in making its discretionary determination to deny his I-485 application for adjustment of status. While USCIS acknowledged that he was married to a U.S. citizen, the multiple negative factors outweighed the positive and his application was denied—a result that could potentially be avoided if the factors weighed in his favor.

Favorable factors that bear on a positive exercise of discretion may include but are not limited to the following: (1) being a spouse of a U.S. citizen; (2) having an approved I-130 petition; and (3) evidence of good moral character. Thus, the relief that either DHS or USCIS had the discretionary authority to grant Bradley was not offered and the government remained firm that eligibility for adjustment of status is not a defense to an order of removal. Nevertheless, according to the government’s brief, other VWP entrants are not barred from relief if they overstay their 90-day visa and later attempt to adjust their status through marriage.

The Solicitor General merely restates — and makes policy that ought to bind USCIS — what has been the common practice and experience for most (but not all) field offices across the country.

Bottom line, the government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust status based on marriage to a US Citizen Spouse.