Introduction

The Visa Waiver Program allows foreign nationals from certain countries to enter the United States for 90 days to conduct business or visit for pleasure without a visa. In order to be approved for Visa Waiver Program travel, the alien must be applying to enter as a nonimmigrant visitor (term governed by the B1 and B2 nonimmigrant visa categories) for a period not exceeding 90 days and he or she must be from a country that participates in the Visa Waiver Program. Entry under the Visa Waiver Program comes with several restrictions. Notably, an entrant under the program waives the right to obtain review of an inadmissibility determination or contest his or her removal. In this post, we address a different question: Can a Visa Waiver Program entrant obtain adjustment of status, and if so, under what circumstances? As we will explain, Visa Waiver Program entrants are generally ineligible to adjust status unless they are applying pursuant to an approved Form I-130 filed by an immediate relative.

We discussed the rules for immediate relatives whose last entry was under the Visa Waiver Program seeking adjustment in a separate article [see article].

General prohibition on Visa Waiver Program adjustment

Section INA 245 provides the main statutory rules for adjustment of immigration status. INA 245(a) authorizes the procedure:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

One of the basic and fundamental requirements for regular adjustment of status is that the alien “was inspected and admitted or paroled into the United States…” To be sure, there are special cases, such as the asylum and refugee adjustment provisions found in INA 209, VAWA (Violence Against Women Act) cases, and other special adjustment procedures listed later in INA 245. However, the vast majority of adjustment cases are governed by INA 245.

INA 245(c) limits INA 245(a) by describing eight classes of aliens who are not eligible for adjustment of status. We have discussed in some detail INA 245(c)(2) and (c)(8), both of which deal with unauthorized employment. With regard to non-immigrant visitors, INA 245(c)(4), which concerns Visa Waiver Program entrants, provides:

Other than an alien having an approved petition for classification as a VAWA self-petitioner, [INA 245(a)] shall not be applicable to … an alien (other than an immediate relative as defined in [INA 201(b)]) who was admitted as a nonimmigrant visitor without a visa under [INA 212(l)] or [INA 217].

(Before continuing, note that INA 212(l) is a special variant of the Visa Waiver Program for individuals from 12 countries to visit Guam or the Commonwealth of the Northern Mariana Islands for business or pleasure and for a period not exceeding 45 days. Visa Waiver Program entrants under the Guam-CNMI Visa Waiver Program are subject to the same INA 245(a) restriction as those visiting under INA 217, notwithstanding other differences in procedures and requirements between the two.)

INA 245(c) is unequivocal. Outside of limited VAWA cases, Visa Waiver Program entrants are ineligible to adjust status unless they are seeking adjustment as the immediate relative of a U.S. citizen. The term “immediate relative” encompasses only “the children, spouses, and parents of a citizen of the United States…” with additional definitions for “children” and “spouses.” Thus, those seeking adjustment in other categories cannot do so while in the United States as the result of a Visa Waiver Program entry.

The United States Citizenship and Immigration Services (USCIS), the immigration agency responsible for adjudicating adjustment of status applications outside of immigration court proceedings, summarized the statute in its PM-602-0093: Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program [link]:

INA section 245(c)(4) renders aliens admitted under the VWP ineligible to adjust status to that of a person admitted for permanent residence. This provision, however, includes an exception for immediate relatives of U.S. citizens. Thus, an individual admitted under the VWP who is also an immediate relative is not precluded from seeking adjustment of status, even after the VWP period has expired.

The Policy Memorandum goes on to provide guidance on how the USCIS handles Visa Waiver Program adjustment cases involving immediate relatives.

Visa Waiver Program adjustment for immediate relatives

The USCIS noted that numerous courts have held that Visa Waiver Program overstays who are charged with removability cannot contest removal on the basis of an approved Form I-485. However, the USCIS itself does not handle removal proceedings. It adjudicates adjustment applications filed outside of removal proceedings. The memorandum explained that notwithstanding the limitations that INA 217 imposes on the ability of Visa Waiver Program entrants to contest removal, USCIS retains the authority to adjudicate Visa Waiver Program adjustment cases involving immediate relatives who are not in removal proceedings.

The USCIS’s 2013 guidance provides that the Service will generally adjudicate adjustment applications filed by immediate relatives of U.S. citizens who were last admitted to the United States under the Visa Waiver Prorgam. Notably, “[t]his includes cases where Form I-485 [adjustment application] was filed after the 90-day period of [Visa Waiver Program] admission.” In such cases, the USCIS will adjudicate the adjustment application before referring the applicant for removal proceedings unless (1) the Immigrations and Customs Enforcement has issued a removal order against the applicant; (2) the applicant is under investigation for, has been arrested for, or has been convicted of an “egregious public safety offense”; or (3) there are fraud or national security issues that require resolution. In the case of point one, the guidance explains that if the Immigration and Customs Enforcement first issues a removal order but then withdraws or rescinds it, the USCIS may adjudicate the adjustment application.

We examined the rules for adjustment for Visa Waiver Program entrants in a separate post [see article].

Note as an additional matter that VAWA-based adjustment of status is also not foreclosed to Visa Waiver Program entrants. INA 245(c) expressly does not limit VAWA adjustment under its own terms.

Conclusion

The Visa Waiver Program exists for the limited purpose of allowing visa-free travel for business and pleasure for nationals of a small number of countries. It is not designed to be a step toward permanent status, and although there is a limited path to adjustment available for immediate relatives of U.S. citizens and VAWA self-petitioners, it is not a reliable one.

If you have entered the United States under the Visa Waiver Program and believe that you have reason to fear returning to your home country or that you may qualify for one of the limited adjustment avenues available to immediate relatives or VAWA self-petitioners, we recommend consulting with an experienced immigration attorney as soon as possible for a case-specific assessment.