Determining the viability of an adjustment of status application--"Should I file?"-can, at times, be very challenging. There are many factual and legal issues to consider, including but not limited to the immigration status of the petitioner (lawful permanent resident or United States Citizen?), priority dates, pre-conceived intent, overstay issues, eligibility under 245i, misrepresentation, and potential criminal bars. In addition to these considerations, there are special restrictions regarding aliens who enter the US under the Visa Waiver Program.
What is the Visa Waiver Program?
The visa waiver program is a compact between the US and certain designated countries that allows foreign nationals from those countries to enter the United States for up to ninety days without the necessity of first having to apply for a visa. This can be a tremendously convenient option for people from those countries who need to enter the United States immediately for business or pleasure reasons that will not take more than ninety days. On the other hand, if the purpose of the visit is anticipated to be beyond ninety days, the foreign national would probably want to apply for a visitor's visa (B1/B2) or working visa, if applicable. However, there is a trade-off: the Department of Homeland Security is very strict in terms of enforcing the ninety day stay. Under no circumstances can a foreign national who enters on a visa waiver extend or change their status. More importantly, Immigration and Customs Enforcement (ICE) has the statutory authority to remove or deport any VWP alien who overstays the ninety days, including immediate relatives (spouses, parents and children under 21 of United States Citizens). Such unlucky people would not even have the right to go before an Immigration Judge to contest their removal. Bearing this in mind, the issue can become thorny when an applicant who may be vulnerable to removal by ICE, the enforcement branch of the Department of Homeland Security (DHS), applies for adjustment of status as an immediate relative before USCIS, the benefits branch of DHS.
So What Does the New USCIS Memo Say About Adjustment of Status for People Who Enter under the Visa Waiver Program?
The statute-Immigration and Nationality Act section 245(c)(4) explicitly states that aliens who enter under the Visa Wavier Program are ineligible to adjust status. However, there is an exception for immediate relatives who are not statutorily barred from adjustment, even if they may have stayed past ninety days.
The Memo, PM-602-0093 entitled "Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program," clarifies and standardizes USCIS's official position that notwithstanding ICE's authority to remove a VWP overstay, USCIS does have the discretion to approve an adjustment of status application if it so chooses to do so. It says: "Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS discretion. USCIS exercises this discretion on behalf of DHS."
Accordingly, USCIS will process and adjudicate adjustment of status applications filed by immediate relatives who entered under VWP the same way it handles most other adjustment of status applications. Should the alien meet the eligibility requirements for adjustment under both Section 245 as well as USCIS Field Operations Standard Operating Procedures for Form I-485, an officer may exercise his/her discretion to approve the application. Aliens will not first be referred to ICE unless 1) ICE has issued a removal order; 2) the adjustment applicant is under under investigation for or has been arrested or convicted of an "egregious public safety offense"; or 3) there are fraud and/or national security issues that need to be addressed. Should the application be denied, however, the applicant may not appeal the finding. USCIS will refer all denied I-485 applications to ICE for consideration. Should ICE issue a Section 217 removal order, a VWP overstay, unfortunately, does not have the right to contest it, or more importantly, renew his/her adjustment in Immigration Court (the Memo does reference one exception, but it pertains to cases within the Ninth Circuit.) Accordingly, the decision to file for adjustment must be carefully deliberated with the appropriate attention paid to any problem areas that might cause the case to be denied as a matter of discretion. While it is possible for an immediate relative VWP overstay to file, it also possible that despite having satisfied all the statutory criteria, the alien's case could be denied. The stakes are high because denial may lead to straight removal without a court hearing.