Visa Waiver Program Entrants and Adjustment of Status
Citizens or nationals of 38 Visa Waiver countries can enter the United States for a 90-day tourist or business visit without the need for a U.S. visa.
Visa Waiver travel starts by submitting an application via the Electronic System for Travel Authorization (ESTA) system. Upon entry to the U.S., the traveler’s passport is generally given an entry stamp indicating “WT” (waiver-tourist) or “WB” (waiver-business).
Understanding the Limitations of VWP Travel
As a trade-off to the great benefit of entering the U.S. under the Visa Waiver Program (VWP), such travelers are not eligible for certain protections offered other foreign visitors in the U.S. Namely, the traveler’s 90-day nonimmigrant stay in the U.S. cannot be extended and it is never possible to change from VWP status to any other non-immigrant status without departing from the U.S.
Our law office is often asked by VWP travelers in Southern California whether the traveler can change status to student or professional worker status—and unfortunately, our attorneys must inform them that they would need to apply for their visa in their home country.
VWP entrants also give up the ability to contest an immigration removal action, even with an adjustment of status application pending. Immigration and Customs Enforcement (ICE) has authority to order the removal of a VWP overstay, including an immediate relative, under INA section 217(b) and 8 CFR 217.4(b).
An Opening for Immediate Relatives
While a VWP traveler cannot “change” to another nonimmigrant category, the rules surrounding their eligibility to “adjust” to Lawful Permanent Resident status have drastically evolved in recent years.
Generally, the spouses, parents, and children (minor, unmarried) of U.S. citizens enjoy a special privilege under U.S. immigration law: They can adjust status – that is, obtain lawful permanent residence – within the U.S., without having to leave for an interview at a U.S. consulate, so long as their entry to the U.S. was lawful.
In the past, VWP travelers were hesitant to apply for adjustment of status, as USCIS did not have a uniform policy, and many such cases were denied—using a strict interpretation similar to the “no change of status” rule. Because there is no right to contest removal proceedings for VWP travelers, many individuals married to U.S. citizen petitioners were deported or removed from the U.S., despite the family equities involved.
In a Policy Memorandum issued on November 14, 2013, USCIS mostly resolved this issue. The memorandum provided for the adjustment of status of immediate relatives of U.S. citizens who entered on the VWP, including VWP entrants who have overstayed their visa for years. Despite the ameliorative effect of the memo, the decision to file for adjustment of status should be very carefully considered. For one thing, the applicant may be accused of preconceived intent–which, as we discussed in a previous Article, is often misapplied.
The VWP applicant is also, as described above, subject to an ineligibility to contest removal proceedings. Practically speaking, this means that someone who entered the U.S. on a visitor visa, married a U.S. citizen and was denied Adjustment of Status typically may have two reviews of their application for Adjustment (by the USCIS, and, if denied, an Immigration Judge). Conversely, the VWP applicant typically only has one ‘bite at the apple’ – the USCIS. If the application is denied, there is no right to have the case heard in court.
See also: Our popular summary of immigration options for foreign-born fiancé(e)s and spouses is here.
See also: A B-1/B-2 and Immediate Relative/Adjustment of Status article can be found here.
See also: Inadmissibilities and applicable Waivers summarized.