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Adjustment for Visa Waiver Entrants

By Kristina Karpinski

On November 14, 2013, USCIS issued a policy memorandum on adjudication of Form I-485, Application to Register or Adjust Status, filed by immediate relatives of U.S. citizens admitted to the United States under the Visa Waiver Program (VWP).  This long awaited guidance clarifies USCIS's position on adjudication of adjustment cases filed after the applicant's 90-day period of admission has expired and outlines when a case should be referred to ICE.

Under INA § 217, nationals of designated countries are allowed to enter the United States as visitors for a maximum period of 90 days without having first obtained a visa.  To enter under the VWP, the visitor must meet certain requirements and waive his or her right to contest removal from the United States, except when requesting asylum.  Those admitted under the program are ineligible to extend or change their nonimmigrant status. Further, under INA § 245(c), VWP visitors are not eligible for adjustment unless they are immediate relatives.

The policy memo instructs field offices to adjudicate adjustment of status cases filed by immediate relatives who were last admitted to the United States under the VWP, including I-485 applications filed after the 90-day period of admission. The memo acknowledges that ICE has authority to order the removal of a VWP overstay, including immediate relatives, but points out that USCIS can exercise its discretion and not seek removal but grant adjustment of status. The guidance instructs that adjudication shall occur before referral to ICE unless:

  • ICE has previously issued a removal order
  • The adjustment applicant is under investigation for, been arrested for, or been convicted of an egregious public safety offense as described in USCIS Policy Memo, "Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissibility and Removable Aliens" (November 7, 2011), or
  • There are fraud or national security issues to resolve.

The memo explains that if ICE has issued a removal order for violation of the VWP rules, USCIS should deny the I-485 as a matter of discretion.  However, if a removal order is withdrawn or rescinded by ICE, USCIS can approve the adjustment if the applicant is otherwise eligible.

The policy guidance goes on to explain that a VWP overstay whose I-485 is denied by USCIS, cannot appeal the decision and may not be placed in section 240 removal proceedings before an immigration judge.  However, there is an exception for some cases filed in the Ninth Circuit. A VWP overstay who is an immediate relative and who files the I-485 within the 90-day period of admission in the Ninth Circuit is entitled to be placed in section 240 removal proceedings if the case is denied.  Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).  This includes applicants who lived in the Ninth Circuit when the application was filed but move to another jurisdiction before the I-485 is adjudicated.   For cases outside of the Ninth Circuit, USCIS will refer denied I-485 applications of VWP overstays to the local ICE office for consideration of a section 217 removal order.

The policy memorandum can be found on the USCIS website by following the link under "Laws" for "Policy Memoranda," and will be incorporated into the USCIS Adjudicator's Field Manual (AFM) at Chapter 10.3, section (j).

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