Last week I discussed the irrational exuberance that caused attorneys to file adjustment of status applications for their clients who were deported and then came back even after it had become clear that USCIS was going to find the client ineligible for adjustment of status. This week I will discuss a similar irrational exuberance involving visa-waiver-entrant adjustments.
The visa waiver program, found at INA § 217, allows citizens of certain countries to come to the United States without a visa for a ninety day visit. There are no extensions or changes of status allowed. More importantly, if an alien overstays the 90 days, he can be removed without any administrative appeal, that is, without seeing an immigration judge. However, in discussing eligibility for adjustment of status, becoming a permanent resident while in the United States, the Immigration and Nationality Act allows for entrants under the visa waiver program to adjust status to permanent residence if they are adjusting as immediate relatives, that is as the spouse, parent, or child (under age 21) of a United States citizen. INA § 245(c)(4). For the longest time. USCIS and its predecessor, INS, looked at the exception for adjustment of status as the controlling statute and ignored the prohibition to adjustment of status at INA § 217 and the right to remove an overstay without taking the person to immigration court. In other words, it was safe to adjust status if one entered under the Visa Waiver Program if adjusting as an immediate relative. (more…)