Under the Visa Waiver Program (VWP) nationals of certain “low risk” countries are allowed to travel to the U.S. without a visa. These individuals register with the online Electronic System for Travel Authorization (ESTA) before traveling to the U.S. Most people use the terms ESTA and VWP interchangeably.
When someone comes to the U.S. through ESTA, are they allowed to seek permanent residency (i.e., a “green card”) in the U.S.? This process is known as adjustment of status. The answer is maybe… but the details are complicated.
This post includes legal citations for the reference of attorneys. Note that this post discusses law in the Ninth Circuit (Washington, Oregon, Idaho, Montana, California, Nevada, Arizona, Hawaii, Alaska, Guam and the Northern Mariana Islands). The USCIS Policy Manual discussed below, however, applies throughout the U.S.
Background
Generally, those admitted under a Visa Waiver Program cannot adjust status (apply for a greencard) under INA 245A, however there is an exception for immediate relatives. For this reason the only the following family members of a U.C. citizens will be allowed to adjust status after entering the U.S. under ESTA: spouses, children (under 21 years of age and unmarried, and parents if the citizen is 21 years of age or older.
Under the so-called “no-contest” clause of the Visa Waiver program, enrollees forfeit the rights to (1) a determination of admissibility at a port of entry, and (2) to contest removal, other than by seeking asylum. 8 USC 1187(b). The Ninth Circuit has held that the no-contest clause does not apply to an immediate relative, having entered under a Visa Waiver Program, who seeks to adjust status. Freeman v. Gonzales, 444 F.3d 1031, 1035 (9th Cir. 2006). Rather, it is overridden by the procedural safeguard available to an application seeking to adjust status, who “retains the right to renew his or her application” if it has been denied. 8 C.F.R. § 245.2(a)(5).” Id.; see 8 CRF 245.2(a)(5).
An individual admitted under ESTA has a period of authorized stay of 90 days. Under the Ninth Circuit precedent described above, an immediate relative is permitted to seek adjustment of status if filed within the 90-day ESTA window.
What if the application is filed after the 90-day window?
The Ninth Circuit has held that adjustment of status cannot be sought after the 90-day ESTA window. Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. Cal. 2008); see also Dehkordi v. Holder, 410 Fed. Appx. 34, 37 (9th Cir. 2010) (holding that because no application for adjustment was filed within the 90-day window, VWP entrant was not permitted to seek adjustment).
That would appear to be the end of the story… except that it’s not.
Despite the clear Ninth Circuit precedent (holding that adjustment cannot be sought after the 90-day ESTA window), the immigration service has taken a more generous approach. But only informally. In a April 7, 2011 liaison meeting with the American Immigration Lawyers Association (AILA), U.S. Citizenship and Immigration Service (CIS) gave guidance on this issue. See AILA Doc. 11040735. Here is what CIS has said:
All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM update on this topic we expect to issue soon.
This informal guidance provides that unless the individual has been ordered removed, her adjustment application should be processed. Later, on November 14, 2013, USCIS published a formal policy memorandum entitled Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program.
USCIS official Policy Memorandum
The November 14, 2013 Policy Memorandum clearly affirms that spouses of U.S. citizens are allowed to adjust status past the 90-day period. The policy is as follows:
USCIS field offices shall adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the United States under the VWP, in accordance with section 245 of the INA. This includes cases where Form I-485 was filed after the 90-day period of admission. Adjudication shall occur prior to referral to ICE unless:
- ICE has 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.
So what’s the bottom line? Under USCIS’s policy you are allowed to seek adjustment before or after the 90-day window as long as you haven’t been ordered removed (i.e., deported), arrested for certain offenses, or trigger national security concerns.
Strategic considerations
If you entered ESTA and are considering an adjustment of status here are two major considerations.
First, beware of the 30/60 day rule. Under this guideline a marriage is presumed to be fraudulent if it occurs within 30 days of when a person enters the U.S. After 60 days (but before 90 days) the marriage is treated as suspicious, though not presumed to be a fraud. Realistically this means that if someone applies for adjustment before hitting the 90-day ESTA expiration they are likely going to be subjected to strict examination of their marriage. These are cases where you want to do an outstanding job documenting the bona fides of the relationship.
Second, also beware of “immigrant intent” issues. The concept here is that a person cannot enter on a temporary status – such as ESTA – with the subjective intention of applying for permanent residency. If a person has such an intention she has essentially lied to the U.S. Government when using ESTA, since it is intended for those who plan to return within the 90-day window. If a person decides to seek a green card, then enters the U.S. with ESTA, she could be found permanently inadmissible to the United States. On the other hand, we often speak to clients who had no plans to seek a green card. For example, it happens relatively often that the U.S. citizen will make a surprise proposal during the visit. Generally speaking, the marriage and green card application were planned after the person’s arrival in U.S. in order to apply. If we believed that a person made plans before arriving in the U.S. we would refuse to file the case.
Finally, there are further requirements for adjustment of status aside from those discussed here. This post discusses only the ESTA-related timing issue. In short, ESTA adjustment cases can be complicated, and should probably be discussed with an attorney.
