As a general rule, foreign nationals who enter the United States through the Visa Waiver Program (VWP) may not adjust status to permanent resident (green card holder). Specifically, a foreign national admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status. But there is an exception for immediate relatives and VAWA-based applicants. Adjustment of status for Visa Waiver Program entrants is possible for immediate relatives of U.S. citizens. These bars also do not apply to those applying under the federal Violence Against Women Act (VAWA).
Immediate relatives have tremendous privileges and allowances under U.S. immigration law. As such, adjustment of status for visa waiver program entrants is special benefit available to immediate relatives.
Visa Waiver Program
Many foreign relatives of U.S. citizens and lawful permanent residents use the Visa Waiver Program to make spontaneous trips to the United States related to business or pleasure. It also stimulates commerce for those visiting the U.S. for business purposes.
Under the VWP (as codified in INA § 217), foreign nationals from certain designated countries are allowed to enter the United States as visitors for a maximum period of 90 days without having first obtained a visa. Travelers register with the online Electronic System for Travel Authorization (ESTA) before traveling to the U.S. Therefore, many people use the terms ESTA and VWP interchangeably. The temporary visit is similar to a B1/B2 entry for business or pleasure. To enter under the VWP, the visitor must meet certain requirements and generally must waive his or her right to contest removal from the United States.
Adjustment of Status
Foreign nationals who are in the United States and have an immigrant visa immediately available to them, can generally adjust status to permanent resident (green card holder) by filing Form I-485, Application to Adjust Status. Although eligibility for permanent residence includes additional requirements, there are three major criteria to adjust status. In most cases, the applicant must:
- Be physically present in the United States
- Have a lawful entry
- Have an immigrant visa immediately available
The third of these criteria is the most difficult for many family-based applicants. For most family preference immigrants, the immigrant visa petition (Form I-130, Petition for Alien Relative) must be approved and current. Due numerical limit of family preference visas each year, there is generally a wait time for family preference immigrants. In other words, it may take a few years for the petition approval and a few more years for the visa to become available. Petitioners and beneficiaries can review the U.S. Department of State’s monthly visa bulletin to determine the wait.
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On the other hand, immediate relatives never have this numerical restriction. Immediate relatives include the spouse, unmarried children (under age 21) and parents of U.S. citizens. An immigrant visa (green card) is always available. Consequently, immediate relatives can adjust status much more easily.
Adjustment of Status for Visa Waiver Program Entrants
Entering the United States through the Visa Waiver Program counts as a lawful entry. However, the law that created the Visa Waiver Program also stipulates that VWP entrants are not allowed to change or adjust their status. This prevents most VWP entrants from adjusting status.
In November 2013, USCIS issued a policy memo that clarified their position on this ambiguity. The policy memo instructs USCIS officers to process adjustment of status cases filed by immediate relatives who were last admitted to the United States under the VWP. This also includes I-485 applications filed outside of the 90-day period of admission. While acknowledging Immigration and Customs Enforcement’s (ICE) authority to remove VWP overstays, the memo clarifies that USCIS can grant adjustment of status rather than refer the case to ICE. The policy says that USCIS will process the I-485 application before referral to ICE unless:
- ICE has already issued a removal order; or
- The adjustment applicant is under investigation for, been arrested for, or been convicted of an egregious public safety offense; or
- There are fraud or national security issues to resolve.
Therefore, unless ICE is investigating the applicant or a removal order has already been issued, adjustment of status for Visa Waiver Program entrants is generally routine.
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90-Day Rule Consideration
Adjustment of status applicants should be aware of another guideline when filing Form I-485. The 90-day rule can make adjustment of status for visa waiver entrants slightly more complicated. The U.S. Department of State’s Foreign Affairs Manual provides guidelines on misrepresentation related to the use of a visa. Under these guidelines, there’s a presumption of visa fraud if a person violates his or her nonimmigrant status or engages in conduct inconsistent with that status within 90 days of entry. An attempt to adjust status prior to 90 days would trigger this rule.
The issue here is that a person cannot enter on a temporary status (such as the Visa Waiver Program) with the true intention of applying for permanent residency. Even if the visitor’s intent changed during the course of the U.S. visit, there will likely be an automatic presumption that he or she misrepresented the true purpose of the trip.
For example, a VWP entrant who files an adjustment of status application within 30 days of entering the United States will likely get flagged for possible visa fraud. Although there are plausible reasons that someone could change the intent of the trip for temporary to permanent, it is less likely. For this reason, many attorneys recommend that their clients wait at least 90 days after entry to adjust status.
Adjusting Status with 90-Day Rule Consideration
The dilemma is that the Visa Waiver Program visit is only valid for 90 days. However, the USCIS policy memo provides an allowance for adjustment of status for Visa Waiver Program entrants who are immediate relatives that stay beyond the 90-day period. As such, many attorneys recommend that their clients file an adjustment of status application soon after the 90-day period. However, each applicant’s case is unique. For advice this is tailored to your specific situation, please consult with an immigration attorney.
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