Over the past few years I have been writing a lot about the visa waiver program and adjustment of status. The visa waiver program is a program found at INA § 217 where citizens of certain countries can enter the United States for ninety days without a visa, similar to how United States citizens, when visiting many countries do not have to obtain a visa before traveling. A condition of the program is that a visa-waiver entrant cannot change or adjust status. However, the adjustment of status statute, at INA § 245(c)(4), says visa waiver entrants can adjust status, if adjusting through a United States citizen spouse, adult child, or if under age 21, a United States citizen parent. Courts of appeal that have looked at the issue have concluded that unless an adjustment of status application is filed before period of stay ends, there is no right to adjust status and the government does not have to decide an adjustment of status before deporting someone. Courts have been opaque about whether USCIS can adjust status for a visa waiver overstay.
The San Diego USCIS district had taken the position, assumably from language from the lead Ninth Circuit Court of Appeals decision in Momeni v. Chertoff, that adjustment cannot take place. Even within the Ninth Circuit this position did not prevail in all the USCIS districts. Now, the San Diego USCIS district has back-tracked and is handling visa waiver adjustments on a case by case basis. This is a retrogression to my earliest observation, that success in filing a visa waiver adjustment depends completely on the kindness of strangers.