On November 14, 2013, U.S. Citizenship and Immigration Services released a new policy memorandum regarding USCIS adjudications of I-485 adjustment of status applications submitted by immediate relatives of U.S. citizens who were last admitted to the U.S. under the Visa Waiver Program (VWP). The VWP permits foreign nationals from specifically designated countries to enter the U.S. for up to 90 days for business or for pleasure without obtaining a visa. Currently, 37 countries participate in the VWP. The full list can be found on the State Department’s website. Foreign nationals seeking to participate in the VWP must meet certain criteria, including having no previous visa denials or ineligibilities and no violations of conditions of previous admissions to the U.S., and VWP participants must also waiver their rights to contest any action for removal (other than on the basis of an application for asylum). Unlike with other visa types, VWP individuals may not extend the duration of their stays longer than the 90 day permitted period.  VWP participants may wish to file an I-485 adjustment of status application while in the U.S. so that they may remain with their families and seek employment authorization during the pendency of the I-485 applications. In addition, by filing for adjustment of status while in the U.S. under the VWP, individuals may avoid filing a K-3 visa application.

INA section 245(c)(4) prohibits foreign nationals admitted under the VWP to adjust status to that of permanent resident. However, immediate relatives of U.S. citizens are exempt from this restriction. U.S. Immigration and Customs Enforcement (ICE) has the authority to order removal proceedings for VWP participants who have overstayed their permitted period of visitation, including individuals who are immediate relatives of U.S. citizens. Generally, a VWP overstay may not contest a removal action on the basis that he or she has submitted a Form I-485 Adjustment of Status application. However, USCIS, acting on behalf of the Department of Homeland Security, may exercise discretion in deciding whether to decline to seek removal of an immediate relative of a U.S. citizen who is in the U.S. under the VWP and USCIS may decide whether to grant adjustment of status if such an individual is eligible. Thus, in some cases, a VWP overstay who is not subject to a removal order may file a Form I-485 with USCIS.

USCIS decides adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the U.S. under the VWP according to section 245 of the Immigration and Nationality Act (INA). USCIS will consider section 245 of the INA even if the Form I-485 was filed after the 90-day period of admission (i.e.: a VWP overstay). USCIS will adjudicate such cases prior to referring the individual to ICE, unless ICE has already issued a removal order, the individual has been arrested for or has been convicted of an egregious public safety offense, or there are fraud and/or national security issues involved. If ICE has already issued a removal order for the individual, USCIS will deny the I-485 application as a matter of discretion. If ICE withdraws or rescinds the removal order, USCIS can then approve the application as it sees fit.

A VWP applicant who is refused admission may be removed from the U.S. Such refusal of admission will not affect future inadmissibility, but the refused applicant will not be entitled to appeal or review of the refusal of admission. Such an individual’s removal may be deferred only if the individual has an asylum proceeding pending before an immigration judge.  The refusal of admission under the VWP may affect an adjustment of status application and may be a basis for denying adjustment of status, as a matter of discretion, especially if other negative factors are involved.

VWP overstays applying for adjustment of status have no rights of appeal for a denial of adjustment of status and a VWP overstay may not renew the application in removal proceedings before an immigration judge.1 To see the full USCIS policy memorandum, please click here.

If you would like to apply for adjustment of status as an immediate relative of a U.S. citizen and are currently in the U.S. under the Visa Waiver Program, please contact info@hooyou.com for more information. Our experienced attorneys will assist you in filing an I-485 Adjustment of Status application.

1 The only exception to this rule pertains to cases filed within the jurisdiction of the Ninth Circuit. Such individuals are entitled to be placed in removal proceedings under INA section 240 upon the denial of their adjustment of status applications.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past seventeen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, P.C.

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(11/20/2013)