Introduction

An alien admitted under the Visa Waiver Program is ineligible to adjust status under section 245 of the Immigration and Nationality Act (INA) unless his or her adjustment of status application is based on an immediate relative petition. Under statute, a Visa Waiver Program entrant may adjust status on the basis of an immediate relative petition even if he or she overstays the 90-day period of admission under the Program. However, a Visa Waiver Program overstay renders the alien removable, and the INA prevents a Visa Waiver Program overstay from contesting removal on any basis other than an application for asylum.

Federal appellate courts that have considered the seeming conflicthave generally held that the U.S. Immigration and Customs Enforcement (ICE) may remove a Visa Waiver Program overstay even if he or she has a pending adjustment of status application based on an approved immediate relative petition. Moreover, they have generally held that a Visa Waiver Program overstay may not contest his or her removal on the basis of such an application.

On November 14, 2013, the United States Citizenship and Immigration Services (USCIS) published Policy Memorandum (PM)-602-0093, titled “Adjudication of Adjustment of Status Applications for Individuals Admitted to the United StatesUnder the Visa Waiver Program” [PDF version]. In the PM, the USCIS clarified that its policy is, with limited exceptions, that it will adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted under the Visa Waiver Program, including cases in which the Form I-485 adjustment application was filed after the 90-day period of admission.

In this article, we will examine the statutory and regulatory background of the issue, pertinent case-law, and the USCIS’s memorandum articulating its current policy on adjudicating adjustment of status applications for those admitted under the Visa Waiver Program.

To learn more about the Visa Waiver Program and nonimmigrant visitors generally, please see our full section on Travel Visas [see category]. To learn about issues involving immediate relative petitions, please see our website’s section on Family Immigration [see category]. Finally, we discuss issues specifically relating to Adjustment of Status in a distinct section on site [see category].

Also see our general article explaining the rules for when Visa Waiver Program entrants may seek adjustment of status [see article].

Statutory and Regulatory Background

Under section 217(a) of the INA, an individual from a Visa Waiver Program eligible country may be admitted as a nonimmigrant visa for a period of 90 days or less without a visa, provided that he or she meets all of the statutory requirements. A Visa Waiver Program entrant is not eligible for an extension of stay. However, under implementing regulations found in 8 C.F.R. 217.3(a), the USCIS may grant a 30-day satisfactory departure period to a Visa Waiver Program entry if an emergency prevents the alien from departing within his or her 90-day period of authorized stay. The decision to grant satisfactory departure is discretionary.

Under section 217(b)(2), an applicant for admission under the Visa Waiver Program is required to waive his or her right to contest removal on any basis other than an application for asylum. Under implementing regulations found in 8 C.F.R. 217.4(b), a Visa Waiver Program entrant who is determined to be removable is ordered removed without referral to an immigration judge.

Section 245(c)(4) of the INA addresses adjustment of status for Visa Waiver Program entrants. Under the statute, a Visa Waiver Program entrant — here defined as an alien whose last admission was under the Visa Waiver Program — is ineligible for adjustment of status unless he or she is seeking adjustment of status on the basis of being the immediate relative of a U.S. citizen. Interestingly, this provision also applies to aliens admitted under the Guam and Northern Mariana Islands visa waiver program under section 212(l) of the INA, although it is worth noting that the PM we will discuss in this article does not address section 212(l). Under section 201(b) of the INA, the term “immediate relative” covers “the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.” Accordingly, any relatives of a U.S. citizen other than his or her spouse, parent, or child and any relatives of aliens lawfully admitted for permanent residence are not “immediate relatives,” and they are ineligible to adjust status when their most recent admission was under the Visa Waiver Program.

Interestingly, although an alien who was last admitted under the Visa Waiver Program may adjust status on the basis of an immediate relative petition, he or she may not contest removal on any basis other than an application for asylum. In the next section, we will address how courts addressed this tension.

Courts Find that Pending I-485 is Not a Basis to Contest Removal for Visa Waiver Program Entrant

Most courts that have considered the issue have held that an alien who was admitted under the Visa Waiver Program could be removed notwithstanding a pending adjustment of status application based on an immediate relative petition filed after the entrant’s 90-day period of admission had expired. The PM cited to the following cases:

Bradley v. Att’y Gen., 603 F.3d 235 (3d Cir. 2010) [PDF version];
Lang v. Napolitano, 596 F.3d 426 (8th Cir. 2010) [PDF version];
Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) [PDF version], vacated on other grounds in Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) (en banc);
McCarthy v. Mukasey, 555 U.S. 459 (5th Cir. 2009) [PDF version];
Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. 2008) [PDF version];
Zine v. Mukasey, 517 F.3d 535 (8th Cir. 2008) [PDF version];
Lacey v. Gonzales, 499 F.3d 514 (6th Cir. 2007) [PDF version];
Ferry v. Gonzales, 457 F.3d 1117 (10th Cir. 2006) [PDF version];
Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. 2006) [PDF version];
Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006)* [PDF version]; and
Nose v. Att’y Gen., 993 F.2d 75 (5th Cir. 1993) [PDF version].

* Freeman v. Gonzales, 457 F.3d 1117 (9th Cir. 2006), is an interesting decision worth discussing in brief. In this case, the VWP entrant was eligible for adjustment at the time she entered and sought adjustment before the expiration of her 90-day period of admission. Prior to adjudication of the application, her U.S. citizen husband died. In this case, the Ninth Circuit held that the “no-contest clause” of the Visa Waiver Program statute did not apply and that the applicant could contest her removal action. We will examine this special-Ninth Circuit rule in the next section. However, the Ninth Circuit distinguished this decision in Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. 2008), wherein it held that Freeman was based on specific facts and that its holding did not extend to a case where the Visa Waiver Program entrant applied for adjustment of status after the 90-day period expired. Several of the aforementioned decisions recognized the narrowing of Freeman in Momeni.

Although the PM did not include it in its list, the United States Court of Appeals for the Second Circuit — covering New York, Connecticut, and Vermont — reached the same result as its sister circuits in Gjerjaj v. Holder, 691 F.3d 288 (2d Cir. 2012) [PDF version].

Thus, the Department of Homeland Security (DHS) has been successful in having upheld its authority to remove Visa Waiver Program overstays with pending adjustment of status applications and in arguing that such individuals cannot contest removal on the basis of having filed a Form I-485 as the beneficiary of an immediate relative petition.

The PM explained, however, that “these cases concern only the individual’s ability to contest removal.” (Emphasis added.) While DHS may remove any Visa Waiver Program overstay, that ability does not preclude the DHS from, “as a matter of discretion, declin[ing] to seek the individual’s removal and grant[ing] adjustment if the individual is eligible.” Furthermore, the PM explained that a Visa Waiver Program overstay is not precluded from applying for adjustment of status.

In the next section, we will examine the USCIS’s rules for adjudicating adjustment applications filed by Visa Waiver Program entrants as set forth in the PM.

Adjustment of Status Policy for Visa Waiver Program Entrants

Under the PM, the USCIS will generally adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the United States under the Visa Waiver Program. “That includes cases where [the] Form I-485 was filed after the 90-day period of admission.” However, there are three situations in which the USCIS will not adjudicate an adjustment of status application for a Visa Waiver Program entrant prior to referral to ICE:

ICE has already issued a removal order;
The adjustment applicant is under investigation for, has been arrested for (without disposition), or has been convicted of an egregious public safety offense as described in Part IV of USCIS Policy Memo 602-0050, “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens” (November 7, 2011); or
There are fraud and/or national security issues that require resolution.

Regarding removal orders, the PM instructs USCIS officers to “interpret the entry of [the removal] order as the Secretary [of Homeland Security] exercising his or her discretion not to adjust the status of that individual.” Thus, when a Visa Waiver Program entrant is subject to a section 217 removal order, any application for adjustment of status will be denied as a matter of discretion. If the ICE, in its discretion, withdraws or rescinds the removal order, the USCIS may approve the adjustment application in its discretion.

If a Visa Waiver Program applicant is refused admission, he or she may be removed from the United States. However, the PM clarifies that such a removal after being refused admission “is not a ‘removal’ for purposes of future inadmissibility under INA section 212(a)(9)(A) or (C).” Under section 217(b)(1), a Visa Waiver Program applicant who is refused admission is not entitled to appeal or to seek review of the refusal. However, the individual’s removal may be delayed pending an asylum-only proceeding before the immigration judge. In that case, the applicant would only be able to seek adjustment of status if he or she was paroled under section 212(d)(5)(A). If the applicant is detained or released on any basis other than parole, he or she would be ineligible for adjustment under section 245(a), since he or she would have been neither admitted nor paroled. The USCIS added that refusal for admission under the Visa Waiver Program “is a factor that weighs against a finding that the applicant merits a favorable exercise of discretion [for adjustment].”

It is important to note that release from custody on conditional parole under section 236(a)(2)(B) does not confer eligibility for adjustment of status. Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) [PDF version]. Only parole under section 212(d)(5)(A) may confer such eligibility under section 245(a).

If a Visa Waiver Program overstay is denied adjustment, he or she generally has no appeal rights and cannot be placed in removal proceedings. However, under Freeman v. Gonzales and Momeni v. Chertoff, there is a limited exception in the Ninth Circuit only. In cases arising in the jurisdiction of the Ninth Circuit, a Visa Waiver Program overstay who filed for adjustment within the 90-day period of admission and had a qualifying family relationship at that time “is entitled to be placed in removal proceedings under INA section 240 should the adjustment application be denied by USCIS.” The Ninth Circuit covers the following areas: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington (State), Guam, and the Northern Mariana Islands.

Conclusion

In most cases, the USCIS will adjudicate an adjustment of status application on behalf o an alien last admitted under the Visa Waiver Program only if the application is based on the alien’s being the immediate relative of a U.S. citizen. Because the facts of each case are unique, a Visa Waiver Program entrant should consult with an experience immigration attorney for case-specific guidance. However, it is important to note that the Visa Waiver Program is not designed for those seeking adjustment of status. Those who are seeking immigrant visas based on a petition by a U.S. citizen immediate relative should consult with an experienced immigration attorney for case-specific guidance