This post provides a basic overview for assisting clients who enter the United States on the Visa Waiver Program and wish to seek adjustment of status. The post provided as the written materials that accompany today’s webinar on the topic. The video above is a re-recording of the webinar.
ESTA/Visa Waiver Program 101
First, a word about terminology. The Visa Waiver Program (VWP) is a congressionally-created trusted traveler program that allows nationals of certain countries to travel to the United States without a Visa. The Electronic System for Travel Authorization (ESTA) is the web-based system that foreign nationals use to apply for ESTA travel authorization. When you speak to clients, they will typically refer to ESTA – rather than the VWP – since their experience has been interacting with the online registration system.
Over a third of all visitors to the U.S. – over 20,000,000 per year – travel under the VWP. Clients will often refer to ESTA as a “tourist visa” though it is completely distinct under the INA. As discussed below, ESTA entrants waive important rights that a B-2 visitor would hold. At the consultation stage, therefore, it is important to question a client – typically based on country of origin – when she represents that she entered on a tourist visa.
Countries are designed by the Department of Homeland Security to participate in the VWP if they have low rates of immigration law violations. As of the time of writing, the following is the list of “designated countries” for purpose of the VWP:
Republic of Korea
As the name implies, registration under the Visa Waiver Program does not result in issuance of a visa to the foreign national. Rather, ESTA registrants are exempted from the normal INA requirement of a valid visa. ESTA is intended for travel as a nonimmigrant visitor for a period of up to 90 days. Unlike B-2 visitors, ESTA registrants are generally not able to extend their status. There is an exception that allows 30-days extensions for cause, but these are not generously granted. ESTA entrants may depart the U.S. to Canada or Mexico and thereafter return pursuant to their ESTA status, but the “side trip” must be completed within the initial 90-day widow; “[i]n other words, a side trip to Canada, Mexico, or the adjacent islands does not reset the clock for VWP travelers, unless the traveler is resident in the country to which they travel.”
Applicants register for ESTA by visiting an online portal maintained by U.S. Customs and Border Protection. The application is completed online, and the applicant pays the $14 filing fee. Registration is valid for a period of two years and may be used for multiple entries. An individual who has received ESTA registration is permitted to later apply for a visa, if that better fits her strategic goals.
The core concept of the VWP is a trusted travel program. So it should be no surprise that once a person violates ESTA rules – such as by overstaying the 90-day period of authorized stay – she is thereafter permanently ineligible to travel under the VWP. Likewise, by taking advantage of the ease of travel under ESTA, the foreign national waives certain rights that she would otherwise have under the INA. Under to so-called “no-contest” clause, an ESTA entrant waives the right to contest an inadmissibility finding, and waives all defense to removal except asylum. An ESTA registrant who is found inadmissible will be refused entry and returned; such “refusal and removal” does not constitute a removal under the INA. In practice, CBP often allows the foreign national to withdraw her application for admission. In the marriage-related scenario, for example, withdrawal may be permitted after an adverse immigrant intent finding where the foreign national is visiting a romantic partner in the U.S. In that scenario, expedited removal is most likely to be chosen if CBP believes the foreign national is intentionally misleading the inspecting officer.
Note that in the wake of the San Bernardino shootings, Congress imposed additional restrictions on the VWP. Under the new rules, dual nationals of Iraq, Syria, Iran, or Sudan are disallowed from the VWP, as well as those who have traveled to those countries since March 1, 2011.
Adjustment of status for ESTA/VWP entrants
The INA expressly provides that adjustment of status is not available to ESTA entrants, but allows an exception exclusively for immediate relatives of U.S. citizens. Immediate relatives, of course, are a U.S. citizen’s,
- Unmarried child under the age of 21; and/or
- Parent (if the U.S. citizen is over the age of 21).
In a November 14, 2013, DHS issued a policy memorandum setting forth its stance on adjustment of status for ESTA entrants. The USCIS policy is that adjustment applications will be normally processed unless one of the following is true:
- ICE has issued a removal order for the ESTA entrant;
- The foreign national is under investigation for, has been arrested for, or has been convicted of an “egregious public safety offense”; or
- There are fraud and/or national security issues that “require resolution.”
So long as an ESTA entrant has an order of removal against him/her, she cannot adjust status. USCIS reasons that adjustment of status is a discretionary benefit, and an order of removal demonstrates that DHS has decided that a particular foreign national does not deserve a favorable exercise of discretion. If an ESTA entrant files a Form I-485 while subject to a removal order, therefore, the application will be denied as a matter of discretion. For an ESTA entrant who is subject to removal, the only path forward – with respect to adjustment – is to seek rescission of the removal order. Anecdotally, practitioners have reported success with this approach. For such a client, the attorney should make contact with local ICE at the supervisory level. There is no formal procedural mechanism for seeking recession in this context.
What can be done for an ESTA client who has been refused admission at a port of entry? Recall that ESTA entrants waive the right to contest removal, except through an asylum-only hearing. USCIS takes the position that because such an individual has been denied admission, she will be eligible to seek adjustment only if granted parole. While the denial of admission by itself does not prevent adjustment for an applicant granted parole, the denial of admission will be considered as one negative factor in determining whether the individual merits a positive exercise of discretion.
Egregious public safety offenses
“Egregious public safety offenses” are defined in a November 7, 2011 USCIS policy memorandum and are the following:
- Murder, rape, or sexual abuse of a minor.
- Illicit trafficking in firearms or destructive devices.
- Offenses relating to explosive materials or firearms.
- Crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year.
- An offense relating to the demand for, or receipt of, ransom.
- An offense relating to child pornography.
- An offense relating to peonage, slavery, involuntary servitude, and trafficking in persons.
- An offense relating to alien smuggling.
- Human Rights Violators, known or suspected street gang members, or Interpol hits.
- Re-entry after an order of exclusion, deportation or removal subsequent to conviction for a felony where a Form I-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal, has not been approved.
Note that almost all of the foregoing offenses would make the foreign national ineligible for adjustment, regardless of the ESTA policy memorandum.
USCIS states that an ESTA applicant whose Form I-485 is denied may not appeal that decision – she will be ordered removed and has no right to contest removal before an IJ. In the Ninth Circuit only an ESTA entrant may renew her adjustment application in removal proceedings, but only if the Form I-485 was filed within her 90-day ESTA period.
In Freeman v. Gonzales the Ninth Circuit considered the issue of whether an I-485 denial for an ESTA entrant could be renewed in removal proceedings In Freeman, an ESTA entrant filed an adjustment application within the 90-day window, but was widowed when her petitioner-husband died while the application was still pending. The Government took the position that the no-contest clause precluded the foreign national from renewing her adjustment application before an IJ, as she would normally be able to under INA 245(a). But the Ninth Circuit disagreed. Since the VWP statute allows for immediate relatives to adjust, the Court concluded that the normal procedural protections enjoyed by adjustment applicants should apply when the applicant entered on ESTA. Unfortunately, in Momeni v. Chertoff, Ninth Circuit limited the holding in Freeman to applicants who sought adjustment within the 90-day ESTA window.
Unfortunately, outside the Ninth Circuit there is no entitlement to seek review of an adjustment denial, regardless of whether it is filed within the 90-day ESTA window.
Advising ESTA/VWP client regarding adjustment
By far the most common issue of concern in these cases is immigrant intent. Any foreign national entering the United States on a non-immigrant status – including ESTA – bears the burden of showing that her travel is indeed for the allowed temporary purpose. A non-immigrant who enters the U.S. with the pre-formed intention to seek resident status may have committed a material misrepresentation under the INA and thus be subjected to the inadmissibility bar on the basis.
In the case of spouses, the timing of the marriage may lead to concerns. Under the so-called 30/60-day rule, marriages within 30 days of entry are presumed fraudulent; those within 60 days are not presumed fraudulent, but are viewed with heightened suspicion. Particularly because of the 90-day ESTA window, it is common to see clients marry within 60 days of the foreign national’s arrival. Beyond the timing of the marriage, at an initial consultation with an ESTA client an attorney should pry into the timeline of the decision to seek residency.
Is adjustment the best option?
We note that ESTA clients tend to be relatively more globally mobile than other sectors of our client base. Commonly our ESTA clients travel internationally with frequency, both for business and pleasure. With such clients, it is especially important to ensure they understand the timeline and travel restrictions that will accompany the adjustment process. At the time of writing, adjustment applications in our jurisdiction (Seattle) take 6-8 months. Temporary travel and work authorization is supposed to be issued to adjustment applicants within 90 days of their application, but in practice “combo cards” are currently taking over four months to be issued.
For a client needing to tend to business either in her home country or elsewhere, being tied down for four months may be totally unacceptable. The client may prefer to have her U.S. fiancé(e)/spouse file a petition for consular processing. There is no reason that petition cannot be filed early in the foreign national’s ESTA visit; filing the petition early in her visit will reduce the couple’s separation once the foreign national returns home. Moreover, ESTA clients are more likely than many others to be able to return to the U.S. during the pendency of an I-130 or I-129F petition. Certainly the fact that the couple has filed a petition will increase immigrant intent suspicion if the foreign national attempts to enter on ESTA while the petition is being processed. But ESTA travelers are categorically viewed as lower risk for immigration violations than nationals of non-VWP countries. Moreover, ESTA clients with the resources to travel internationally may be more likely to have long-term employment and property ownership in their home countries – the type of ties that will help overcome immigrant intent concerns at a port of entry.
Counseling ESTA clients who are abroad.
We are often contacted by foreign nationals who are abroad and who are contemplating entering the U.S. on ESTA with the intention of seeking adjustment. The strategy clearly involves entering the U.S. on a temporary status with immigrant intent. It is our view that it would constitute counseling fraud to advise a client to pursue such a strategy. This is true even if couched in coded language such as, “I can’t advise you to do that because it is not legal, but give me a call if you do wind up in the U.S.” The only appropriate strategy in such situations is for the U.S. citizen to file an I-130 or I-129F petition for purposes of consular processing.
 INA § 217.
 Cf. Congressional Research Service, Visa Waiver Program (Dec. 4, 2015) (AILA Doc. No. 15121762), at 2.
 INA § 217(c).
 8 C.F.R. § 217.2(a).
 INA § 217.2(a)(2).
 8 C.F.R. § 217.4(b).
 9 FAM 201.1-4(C)(2).
 8 C.F.R. § 217.5(h).
 8 C.F.R. § 217.4(d).
 8 C.F.R. § 217.4(f)(2).
 INA § 217(a)(7). See also 8 C.F.R. § 217.4(f)(4) (DHS has discretion to revoke ESTA registration).
 Freeman v. Gonzales, 444 F.3d 1031, 1034 (9th Cir. 2006) (the no-contest clause is “the linchpin of the [Visa Waiver] program”) (quoting Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005)).
 INA § 217(b). ESTA entrants waive their right to ‘normal’ removal proceedings, and have no right to appear before an immigration judge. 8 C.F.R. § 217.4(b).
 8 C.F.R. § 217.4(a)(1); 8 C.F.R. § 217.4(a)(3).
 The restrictions were enacted through the omnibus appropriations bill for 2016. Public Law 114-113.
 INA § 245(c)(4).
 USCIS, Policy Memorandum, Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program (Nov. 14, 2013) (“Adjustment Memo”).
 Id. at 1-2.
 Id. at 2.
 Id. (“If ICE withdraws or rescinds the removal order, USCIS can then approve the application as appropriate”).
 INA § 217(b).
 Adjustment Memo at 3 (adjustment is available only of the individual paroles under INA § 212(d)(5)(A)).
 USCIS, Policy Memorandum 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011).
 Adjustment Memo at 3.
 444 F.3d 1031 (9th Cir. 2006)
 Id. at 1032-33.
 Id. at 1043.
 521 F.3d 1094 (9th Cir. 2008).
 Cf. Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010); Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008) Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006). But see Taing v. Chertoff, 526 F. Supp. 2d 177, 179 (D. Mass. 2007) (denying Government’s motion to dismiss action filed by widowed ESTA entrant).
 INA § 214(b).
 INA § 212(c).
 See 9 FAM 302.9-4(B)(3).