Adjustment of Status for Visa Waiver Program

As a basic rule, overseas nationals who enter the US by way of the Visa Waiver Program (VWP) could not modify standing to everlasting resident (inexperienced card holder). Particularly, a overseas nationwide admitted as a nonimmigrant and not using a visa below a Visa Waiver Program is barred from adjustment of standing. However there’s an exception for fast relations and VAWA-based candidates. Adjustment of standing for Visa Waiver Program entrants is feasible for fast relations of U.S. residents. These bars additionally don’t apply to these making use of below the federal Violence In opposition to Ladies Act (VAWA).

Instant relations have super privileges and allowances below U.S. immigration legislation. As such, adjustment of standing for visa waiver program entrants is particular profit accessible to fast relations.

Visa Waiver Program

Many overseas relations of U.S. residents and lawful everlasting residents use the Visa Waiver Program to make spontaneous journeys to the US associated to enterprise or pleasure. It additionally stimulates commerce for these visiting the U.S. for enterprise functions.

Beneath the VWP (as codified in INA § 217), overseas nationals from sure designated international locations are allowed to enter the US as guests for a most interval of 90 days with out having first obtained a visa. Vacationers register with the net Digital System for Journey Authorization (ESTA) earlier than touring to the U.S. Subsequently, many individuals use the phrases ESTA and VWP interchangeably. The short-term go to is much like a B1/B2 entry for enterprise or pleasure. To enter below the VWP, the customer should meet sure necessities and usually should waive his or her proper to contest elimination from the US.

Adjustment of Standing

Overseas nationals who’re in the US and have an immigrant visa instantly accessible to them, can usually modify standing to everlasting resident (inexperienced card holder) by submitting Type I-485, Software to Alter Standing. Though eligibility for everlasting residence consists of extra necessities, there are three main standards to regulate standing. Normally, the applicant should:

• Be bodily current in the US
• Have a lawful entry
• Have an immigrant visa instantly accessible

The third of those standards is essentially the most tough for a lot of family-based candidates. For many household choice immigrants, the immigrant visa petition (Type I-130, Petition for Alien Relative) should be authorised and present. Due numerical restrict of household choice visas every year, there’s usually a wait time for household choice immigrants. In different phrases, it could take just a few years for the petition approval and some extra years for the visa to grow to be accessible. Petitioners and beneficiaries can evaluation the U.S. Division of State’s month-to-month visa bulletin to find out the wait.

RECOMMENDED: Tips on how to Learn the Visa Bulletin

However, fast relations by no means have this numerical restriction. Instant relations embrace the partner, single kids (below age 21) and oldsters of U.S. residents. An immigrant visa (inexperienced card) is all the time accessible. Consequently, fast relations can modify standing rather more simply.

Adjustment of Standing for Visa Waiver Program Entrants

Getting into the US by way of the Visa Waiver Program counts as a lawful entry. Nevertheless, the legislation that created the Visa Waiver Program additionally stipulates that VWP entrants are usually not allowed to vary or modify their standing. This prevents most VWP entrants from adjusting standing.

In November 2013, USCIS issued a coverage memo that clarified their place on this ambiguity. The coverage memo instructs USCIS officers to course of adjustment of standing instances filed by fast relations who had been final admitted to the US below the VWP. This additionally consists of I-485 purposes filed outdoors of the 90-day interval of admission. Whereas acknowledging Immigration and Customs Enforcement’s (ICE) authority to take away VWP overstays, the memo clarifies that USCIS can grant adjustment of standing reasonably than refer the case to ICE. The coverage says that USCIS will course of the I-485 software earlier than referral to ICE except:

• ICE has already issued a elimination order; or
• The adjustment applicant is below investigation for, been arrested for, or been convicted of an egregious public security offense; or
• There are fraud or nationwide safety points to resolve.

Subsequently, except ICE is investigating the applicant or a elimination order has already been issued, adjustment of standing for Visa Waiver Program entrants is mostly routine.

RECOMMENDED: Marriage to a U.S. Citizen After an Overstay

90-Day Rule Consideration

Adjustment of standing candidates ought to concentrate on one other guideline when submitting Type I-485. The 90-day rule could make adjustment of standing for visa waiver entrants barely extra difficult. The U.S. Division of State’s Overseas Affairs Guide gives pointers on misrepresentation associated to using a visa. Beneath these pointers, there’s a presumption of visa fraud if an individual violates his or her nonimmigrant standing or engages in conduct inconsistent with that standing inside 90 days of entry. An try to regulate standing previous to 90 days would set off this rule.

Immigrant Intent

The difficulty right here is that an individual can’t enter on a short lived standing (such because the Visa Waiver Program) with the true intention of making use of for everlasting residency. Even when the customer’s intent modified in the course of the course of the U.S. go to, there’ll possible be an automated presumption that she or he misrepresented the true function of the journey.

For instance, a VWP entrant who recordsdata an adjustment of standing software inside 30 days of coming into the US will possible get flagged for doable visa fraud. Though there are believable causes that somebody may change the intent of the journey for short-term to everlasting, it’s much less possible. Because of this, many attorneys advocate that their shoppers wait at the very least 90 days after entry to regulate standing.

Adjusting Standing with 90-Day Rule Consideration

The dilemma is that the Visa Waiver Program go to is just legitimate for 90 days. Nevertheless, the USCIS coverage memo gives an allowance for adjustment of standing for Visa Waiver Program entrants who’re fast relations that keep past the 90-day interval. As such, many attorneys advocate that their shoppers file an adjustment of standing software quickly after the 90-day interval. Nevertheless, every applicant’s case is exclusive. For recommendation that is tailor-made to your particular scenario, please seek the advice of with an immigration legal professional.

RECOMMENDED: 90-Day Rule and Adjusting Standing

About CitizenPath

CitizenPath gives easy, inexpensive, step-by-step steering by way of USCIS immigration purposes. People, attorneys and non-profits use the service on desktop or cell machine to arrange immigration varieties precisely, avoiding pricey delays. CitizenPath permits customers to attempt the service without cost and gives a 100% money-back assure that USCIS will approve the appliance or petition. We offer assist for the Adjustment of Standing Software (Type I-485), Petition to Assist a Relative Receive a Inexperienced Card (Type I-130), and a number of other different USCIS varieties.