Change of Status from Visa Waiver to another Non-immigrant Status
Coming to the U.S. can be eye opening. Many people may visit, and then realize that they would like to stay longer, either to work or go to school. Someone may come as a tourist, and then later decide that he wants to stay. Can someone who comes as a tourist under the Visa Waiver Program change status to another nonimmigrant visa status and stay longer in the U.S.?
For example, Larry is from France. France participates in the Visa Waiver Program (VWP) with the U.S. (If your country participates in the VWP, there is no need to get a tourist visa to visit the United States.) The VWP is designed for temporary business or pleasure travel that lasts for fewer than 90 days. Learn more about countries participating in the Visa Waiver Program here.
When Larry enters the U.S. on VWP, he originally intends just to visit and learn more about the U.S. However, spending 30 days in the U.S., Larry finds a prestigious university that he would like to attend and wants to change from VWP to F-1 status, without having to leave the United States. However, Larry is unsure as to whether he can legally apply for a change of status in this context.
In the scenario above, Larry would not be able to apply for a change of status from VWP to F-1 status. As a general rule, a person on a VWP cannot change his or her status while still in the United States. There are minor and rare exceptions, such as U visas, refugee, and asylum, but the overwhelming majority of people on VWP cannot change status to another nonimmigrant visa while still in the U.S. Larry will have to go home and apply for a visa through Consular Processing at the U.S. consulate in France.
Adjustment of Status from Visa Waiver to Lawful Permanent Resident
What if you come to the U.S., and find that you like it so much, you want to file to adjust your status to lawful permanent resident status (green card holder) so that you can stay permanently? Can you do that?
Usually you cannot file an adjustment of status from VWP status. As a general rule, a person who enters on VWP cannot adjust status to lawful permanent resident status (green card holder) while in the U.S. By entering on VWP, you certify to the Customs and Border Protection agent who admits you that you do not intend to stay in the U.S. If you intend to stay in the U.S., you are considered ineligible for the VWP and should seek the appropriate visa from the U.S. consulate in your country.
The exception to this is for immediate relatives of U.S. citizens who are the beneficiaries of an immediate-relative petition and file an adjustment of status application within the 90 day authorized period. Sometimes, after people arrive in the U.S. on VWP, they might change their minds and decide they want to stay permanently with their U.S. citizen family member. If you are in the U.S. based only on the VWP, then you can file for a green card based on marriage to a U.S. citizen, or being the child of a U.S. citizen (under 21 years old and unmarried), or being the parent of a U.S. citizen, and the U.S. citizen child who petitions for you must be 21 years or older (these three bases together is called the “immediate relatives” category). However, a VWP holder who files for an AOS outside of the 90-day period or is otherwise placed in removal proceedings may be ineligible for an adjustment of status, even if they are an immediate relative. For all other kinds of green card applications, you will still have to go through the consulate in your country after the initial petition has been approved by the USCIS.
For example, Sara lives in England. Dan lives in Chicago and is a U.S. Citizen. Sara and Dan have been dating for 2 years, and Sara often comes to Chicago to visit Dan, never staying for more than 90 days. During one of Sara’s trips to Chicago, Dan proposes and Sara says yes. Can they get married right away, so that Sara can apply for her green card and stay with Dan? Yes. Sara can file her adjustment of status at the same time that Dan files the immigration petition (I-130) petition for her within 90 days of Sara’s arrival at the US.
However, green card applications filed by people present in the U.S. through VWP must be carefully addressed. Applicants should still be prepared to document that they did not have preconceived intent. Second, applicants should pay careful attention to timing, and be sure to file their application while they are still in VWP status in the U.S.
Applicants should make it a priority, if they are eligible and decide to file for a green card while in the U.S. on the VWP, to file it within 90 days of entry. People who enter on the VWP are only allowed to stay for 90 days. After that, they are unlawfully present in the U.S., and can be removed by the government if caught. People who enter on VWP, as a condition of their entry, waive their right to review before an immigration judge prior to removal. A pending application for a green card does not protect an applicant who entered under VWP from removal, unless he filed it within 90 days. Thus, a person who enters under VWP and is eligible for adjustment of status should be careful to file his/her application before the 90 days is up.
Canada is not included on the list of countries that participate in the Visa Waiver Program; however, Canadians are admitted under North American Free Trade Agreement (NAFTA). Canadian citizens do not need a visa (except those who fall under E, K, S, or V non-immigrant visas), but do need a passport to enter the U.S. Also, under the Western Hemisphere Travel Initiative (WHTI) program, Canadian citizens must have a valid passport to enter the U.S. and must provide documentary evidence of citizenship (exceptions can be found at.
The North American Free Trade Agreement (NAFTA) also allows Canadian citizens to enter the United States to engage in certain professional activities. The agreement allows Canadian citizens to enter as business visitors so long as they receive no salary or other compensation from a U.S. source, other than expense allowances. Also, for Canadian professionals, there are TN visas that allow Canadian citizens to engage in professional activities.
Furthermore, Canadian citizens who are admitted into the U.S. without a visa are allowed to remain for 180 days; however, those who enter the United States under a B-1/B-2 visa are allowed to stay in the U.S. for 1 year and those admitted under a TN visa are allowed to stay in the U.S for three years. While Canadian citizens are not allowed to file and application for an adjustment of status, they are allowed to apply for a change of status to another non-immigrant status. It should be noted that the USCIS could look upon this application with scrutiny; therefore if the Canadian citizen would like to eventually apply for a change of status, they should be upfront about it with the USCIS border monitor when they make their entry into the United States. Doing this will decrease the likelihood of the COS application being denied on the basis of preconceived intent.
For more information about TN visas, click here.
Electronic Code of Federal Regulations: 8 CFR § 212.1(a)(1)(i)-(iii); 8 CFR 214.2(b)(1); 8 CFR 214.6(e); 8 CFR § 217.3(a); 8 CFR 1208.2(c)(3)(i)
(Updated 10/10/2012 by AD)
For more information on how to apply for an Adjustment of Status, please click on one of the following topics below: