Lee & Garasia, LLC
  • Tel: 732-516-1717
  • Toll free: 888-404-5876
Experience, Accessibility, and Excellence for Over 20 Years
  • "Lee and Garasia are excellent lawyers, punctual and professional. They are dedicated to going above and beyond the usual level of service to meet your client's needs. Their staff is very knowledgeable, friendly and polite. I would highly... recommend this firm to anyone." Read More

  • "I would definitely recommend Mr.Lee and Garasia as an immigration attorney because they did a great job with my case i.e. of Adjustment of Status (i-485). Mr. Lee helped us in each and every detailed information and prepared to the best of it. It was all well done and would like to appreciate." Read More

  • "I would like to thank my lawyer Mr Lee & Garasia and the staff for all immense help and patience throughout this entire process, I really appreciate your constant attention to my case, as well to my questions and my concerns. You've really made this process much more comprehensive to me, which I greatly appreciate." Read More

  • "Mr. Lee and Ms. Garasia did a great job with my renewal of my permanent residence application. They help prepare the paperwork with such a great attention to details and accuracy. I will recommend the law firm every time." Read More

  • "Mr. Lee did a great job with the renewal of my permanent residence application. My case was very time sensitive and they worked really fast on my case with great detail and accuracy. I will recommend the law firm every time." Read More

  • "I would recommend Attorney Paris Lee for anybody who needs immigration consultation. Mr. Lee is THE lawyer who respects and cares clients. Mr. Lee is professional and honest. Bottom line, preparation for the results and NO BS!" Read More

  • "Stalin - Lee did a wonderful job, Got my wife her visa in one year. He is extremely helpful and knowledgeable. I would highly recommend him for all your immigration needs." Read More

  • "Hello. I appoint him as my immigration lawyer and that way he solved my cases was truly amazing. He was so honest and knowledgeable for his work.He solved my all family imigration issues and because of his effort we were able to get done our immigration work done successful. Thank you lee and garasia." Read More

  • "Lee & Garasia stand for accountability and responsibility. They are reliable, honest and are always constructively looking for a solution.. A big thanks :)" Read More

Can I Apply For A Green Card Through Adjustment If I Entered Through The Visa Waiver Program (VWP)?

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.

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PROFESSIONAL RECOGNITION

    • The National Advocates | Top 100 Lawyers
    • Rated by Super Lawyers | Angie Garasia | 5 Years
    • Avvo Rating 10.0 | Superb
    • Client Distinction Award martindale.com | 2016 Martindale-Hubbell Client Distinction Award
    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
    • Nationaly Recognized | Newsweek Nationwide Showcase | Top Attorneys 2013
    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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Lee & Garasia, LLC
190 State Route 27
Edison, NJ 08820

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