When Visa Waiver Entrants Can Apply to Adjust Status in the U.S.: USCIS Issues Clarification

VWP entrants who are immediate relatives of U.S. citizens can adjust status if they can avoid removal!

As any reader of Nolo products knows, 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, get a green card or 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. Most lawful entries are either with a visa or under the Visa Waiver Program (VWP).

This opportunity to adjust status works even if the noncitizens overstayed their visa or other permitted stay. Such a path toward a green card will come to an abrupt end, however, in cases where the use of the visa was fraudulent; i.e. a temporary visa was misused specifically for the purpose of getting into the U.S. to apply for a green card; but that's another story, described in, "Risks of Entering the U.S. as a Tourist, Then Applying for Marriage-Based Green Card."

But the issue that's come to the fore now is whether noncitizens who entered the U.S. under the Visa Waiver Program (VWP) can really be allowed to adjust status. VWP entry, though lawful, comes with some very specific conditions attached. Part of the "deal" is that VWP entrants are not allowed to change or adjust their status or fight their removal from the U.S. in immigration court. (Easy in, easy out.) In the past, some USCIS offices have been known to reject adjustment applications from VWP entrants.

This issue has mostly resolved, in recent years, by U.S. Citizenship and Immigration Services (USCIS) allowing immediate relatives of U.S. citizens who entered on the VWP to apply for adjustment of status. And now, fortunately, we have this USCIS policy set out in writing, in a November 14, 2013 memo.

The USCIS memo makes some important points, however, which VWP entrants applying to adjust status should consider.

One is that submitting an adjustment of status application does not protect applicants from enforcement proceedings and removal. In other words if, by chance, Immigration and Customs Enforcement (ICE) catches and arrests you, you can be escorted straight out of the U.S., with no hearing or grounds to protest. (Notice we said "by chance" – ICE is a different arm of the Department of Homeland Security than USCIS, and would only act because of some set of circumstances external to your adjustment application. There is no record of USCIS reporting adjustment of status applicants to ICE.) And, as might be obvious, if a removal order has already been issued against you, filing for adjustment of status will not undo it.

Another important point is that, unlike in most adjustment of status cases, a USCIS denial of a VWP applicant's case is final. It will not be referred to Immigration Court for removal proceedings (which sounds like a good thing, until you realize that removal proceedings give applicants a second chance at applying, in front of the judge – while VWP applicants may simply be ordered out of the U.S.). There's an exception for applicants within the Ninth Circuit of the federal court system. If they filed the Form I-485 adjustment of status application during their 90-days in valid VWP status, they may be placed into removal proceedings after a USCIS denial and allowed to present their case to an immigration judge.