VWP to AOS: A new policy for adjudicating I-485 applications (AOS) filed by immediate relatives of U.S. citizens admitted under the Visa Waiver Program (VWP)

passport clock.jpgOn November 14, 2013, the United State Citizen and Immigration Service (USCIS) issued a Policy Memorandum with guidance on how to adjudicate adjustment of status (AOS) applications filed by immediate relatives of U.S. citizens who entered the Unites States under the Visa Waiver Program (VWP). Below is a discussion of the Visa Waiver Program and how the new policy may affect you.

Who is eligible to adjust status under the VWP?
Immediate relatives (children, parents and spouses) of U.S. citizens who last entered the United States under the VWP may adjust status to permanent residence unless subject to a section 217 removal order.

*The remainder of this article pertains to immediate relatives of U.S. citizens who last entered the United States under the VWP*

What if I filed my I-485 after the 90-day period of admission?
If you are an immediate relative of a U.S. citizen and last entered the United States under the VWP, a USCIS field office may, in its discretion grant adjustment of status even if you filed your I-485 application after the 90-day period of admission, unless:

  • ICE has issued a removal order;
  • you are under investigation or arrested for, or convicted of an egregious public safety offense; or
  • fraud and/or national security issues need to be resolved.

Can I adjust my status even if ICE has already issued a removal order?
Maybe. If ICE has issued a removal order, then USCIS is advised to, in its discretion, deny your application to adjust status. USCIS may properly approve your I-485 only if ICE rescinds or withdraws the removal order. In other words, you cannot use adjustment of status as a defense to removal.

What if I overstayed my VWP status, but filed my I-485 application within the 90-day period of admission?

If you are an immediate relative of a U.S. citizen who overstayed your VWP duration of status, but filed your I-485 application before the 90-day period of admission, then USCIS may still adjudicate your case. But if USCIS has already denied your application to adjust status, then you may not appeal the decision and your case will be referred to the local ICE office to be considered as a section 217 removal order.

However, if you live in Alaska, Washington, Oregon, Idaho, Montana, Nevada, California, Arizona, Hawaii, Guam, or the Northern Mariana Islands then an exception may apply to your case. If you are an immediate relative of a U.S. citizen who overstayed your VWP duration of status, but filed your I-485 application within the 90-day period of admission while living in one of these territories and your case was denied, then you may be placed in removal proceedings under section 240. As in all other territories, if your I-485 application was filed after the 90-day admission period and your case was denied, then your case will be referred to the local ICE office and be considered as a 217 removal order.

What if I am under investigation, have been arrested or convicted of an “egregious public safety offense” or if there are fraud or national security issues with my case that still need to be resolved?
If you are under investigation for, have been arrested for, or convicted of an egregious public safety offense, then USCIS is advised not to adjudicate your case. Instead, the USCIS officer will follow the procedures outlined in the National Background Identity and Security Checks Operating Procedures (NaBISCOP) Handbook.

Similarly, if there are fraud and/or national security issues with your case that still need to be resolved, then USCIS will not adjudicate your case. The USCIS officer will follow the guidance contained in the Fraud Detection and National Security Standard Operating Procedures (FOUO).

What if I was refused admission under the VWP?
If you are an immediate relative of a U.S. citizen and applied for adjustment of status but were refused admission into the United States under the VWP, then you eligibility for AOS depends on your custody status. If you are detained or if your release was based on anything other than parole granted for humanitarian reasons or significant public benefit under INA section 212(d)(5)(A), then you cannot adjust status.

If the USCIS officer finds that you were denied admission based on inadmissibility grounds and inadmissibility is not waived, then the USCIS officer has discretion to deny your application.

What other concerns should I consider before seeking adjustment of status?
While not specifically addressed in the Policy Memorandum, adjustment of status applicants must keep in mind the “30/60 day rule.” If you engage in any activity that may be considered inconsistent with the purpose of coming to the United States within 30 days of entry, then you are presumed to have made a material misrepresentation and to have gained admission to the United States fraudulently. In you engage in any activity that may be considered inconsistent with the purpose of your travel to the U.S. between 30 and 60 days of entry, then you may be required to rebut a presumption of fraud. After 60 days, this presumption of fraud no longer applies. Thus, when obtaining entry to the United States under the VWP it is important to be forthcoming with your intent to avoid a presumption of intent to deceive or commit fraud.

Contact Us
If you would like to speak with one of our experienced attorneys about adjusting your status or to learn more about the Visa Waiver Program, contact The Law Firm of Shihab & Associates today!