The speculative bubble in immigration practice. Part II.

Sunday, September 26th, 2010
By: Jonathan MontagJ.D.

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.

Then things began to change. On November 3, 2005, the Ninth Circuit issued an unpublished decision, Kenny v. Smith, which held that Mr. Kenny, a visa-waiver entrant who was deported despite having an adjustment of status application pending with a United States citizen, had no right to challenge his deportation because he was a visa waiver entrant and thus could not assert his right to adjust status. Kenny was my case. Alarmed at the implications, I wrote an article about it. Word spread that something was new in the visa-waiver-adjustment world. However, Kenny was an unpublished decision and did minimal harm, except to Mr. And Mrs. Kenny. However, a cautious lawyer would at least apprize clients of a risk.

Then came two more cases, both published. The first was Freeman v. Gonzales, published April 21, 2006. In Freeman, a visa-waiver entrant, Ms. Freeman, filed an adjustment of status application. Then her husband died. The case had two issues – was she still eligible to adjust though widowed and could she adjust under the visa waiver program? The case was a watershed in the widow area, ultimately leading to Congress passing a law of great assistance to aliens whose petitioner dies while they are waiting for a visa. It was also important in the visa-waiver context, as it seemed to reverse Kenny. The Freeman court wrote, “We hold that once a VWP entrant files an adjustment of status application as an immediate relative … the alien is entitled to the procedural guarantees of the adjustment of status regime … and to that extent is no longer subject to the Visa Waiver Program’s no-contest clause.” A sigh of relief, it seemed. An visa-waiver entrant could adjust status. And then the other shoe dropped. On March 31, 2008, the Ninth Circuit issued Momeni v. Chertoff. The case held that unless an alien filed his adjustment of status application before the 90-day-visa-waiver period ended, the alien had no right to adjust status and could be deported without access to any administrative review. I wrote another article published in November 2008. I pointed out that in immigration law is a concept of pre-conceived intent. That is, if a person enters the United States with an intention different from the purpose of the visa, the person can be denied admission or subsequently can be accused of fraudulent entry and denied future benefits. In fact, this is what happened to Ms. Freeman. She never became a permanent resident because USCIS decided that she used the visa waiver program fraudulently by applying for permanent residence within 90 days of her admission – what kind of tourist does that? The law looks gently at pre-conceived intent issues if there is family in the United States, but Ms. Freeman had no family. She was a widow.

As of March 31, 2008, the law was bad for visa-waiver entrants seeking to adjust status. However, USCIS did not announce any change its policy of allowing these adjustments. It still hasn’t. So, should you or shouldn’t you file under the visa waiver program? It is ultimately a client’s decision, but at least the client should be warned. Recently, the scuttlebutt is that USCIS is denying visa-waiver adjustment cases. People are incredulous. Well, they should not have been. After Momeni, the law was clear. USCIS did not have to enforce it – Momeni did not say an alien could not adjust, just that USCIS did not have to adjust the person, but how long would that last? Once the agency had the tool, how long before they started using it? Personally, I did not want to find out and was careful to advise potential clients of the downside risk. It does not seem like everyone was. It seems from calls I have been getting that aliens were not informed about Momeni and at sometimes, neither were their lawyers. Exuberant to file, they played ostrich.

It could be that USCIS will announce that it will allow adjustment of status applications from visa waiver applicants notwithstanding Momeni. It is possible that Congress will fix the ambiguity in the law. It is also possible that the current enforcement trend will continue. Being deported means you cannot come back for 10 years (though there are waivers). It is thus important to consider options before filing for adjustment if you are a visa-waiver entrant. There are reasons to ignore the risk, like when other bars make the likelihood of returning through a U.S. Consulate very small. However, the client must be alerted to the risk instead of hiding the ball to retain that extra client. Posted September 26, 2010.

 


 

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