Visa waiver program redux

Sunday, October 31st, 2010
By: Jonathan MontagJ.D.

I have written several times, here, here, and here  about the visa waiver program, similar to how most Americans visit other countries – without visas for short stays, and the ability to adjust status — that is, become a United States citizen. The issue involved is as follows:

1. Person is able to enter the United States under the visa waiver program.

2. The visa waiver program allows aliens who are citizens of certain countries to enter the United States without a visa. The person can stay for 90 days at which time they must leave. If they do not leave, they are subject to arrest and deportation without seeing any judge in any forum to seek any relief from deportation except asylum. INA § 217 [8 USC § 1187]. Aliens cannot file papers in the United States to change their status or to extend their status, except if there is an emergency in which case a 30-day extension can be granted. 8 CFR § 217.3(a).

3. Another section of law, INA § 245(c)(3), also forbids visa waiver entrants from adjusting status, which means changing to permanent residence in the United States, except that it allows such aliens to adjust status if they are immediate relatives of U.S. citizens – which means wives of citizens, children under age 21 of citizens, and parents of U.S. citizens who are over 21 (the son or daughter of the foreign parent must be over 21).

4. The problem is that one statute allows for immediate deportation and another allows for immediate relatives to adjust status. Are those statutes in conflict and if so, how can they be harmonized?

5. The alien enters the United States under the visa waiver program.

6. The alien overstays his 90 day period of admission under the Visa Waiver Program

7. The alien then files to adjust status based on being the spouse, child, or parent of a United States citizen. What will USCIS do with the application? Adjudicate it or deny it and arrange for immediate deportation?

As my previous postings have pointed out, until relatively recently, there was no real disharmony between the sections. The terms of the visa waiver program applied to everyone except if the visa waiver applicant filed for adjustment of status, then his application could be considered. If it was denied, he or she could just be deported without further review from any court.

Then, in Momeni v. Chertoff, decided in March 2008, the Ninth Circuit Court of Appeals decided that an alien could adjust status if he filed before the 90 days expired, but after the 90 days, he or she could be arrested and deported without his or her application being considered. Other circuits, namely the 5th,  6th, 7th,  8th and 10th, have expressed agreement with Momeni, though it seems only the 7th circuit agrees with the Ninth Circuit that an alien who overstays his visa waiver program admission cannot then file for adjustment of status. The other circuit cases discuss, instead, how they and the immigration courts lack jurisdiction to consider claims that adjustment of status were improperly denied and they were improperly denied the ability to appeal the denials in immigration court or other courts.

The issue thus splits into two. Does overstaying under the Visa Waiver Program make an immediate relative ineligible for adjustment of status or does overstaying make review of a denial of adjustment of status unavailable? As noted in my recent blog, many immigration attorneys, of whom I was critical, and visa-waiver overstays were gambling on the latter – that they could adjust status but were dependent on the kindness of USCIS in adjusting them.

The San Diego USCIS office has gone on record in an October 19, 2010, meeting with immigration attorneys as holding the position that the former conclusion is the correct one – that overstaying the visa waiver program and then filing for adjustment of status is not available and USCIS lacks jurisdiction to adjudicate such an adjustment of status application. The logical result of this decision is that the alien be arrested and deported. Apparently, that is not happening yet. Instead, the San Diego USCIS is holding these cases in abeyance awaiting for a decision from USCIS Headquarters as to whether USCIS can adjudicate these cases.

Should USCIS headquarters conclude aliens who overstay cannot then file for adjustment of status, there will be a lot of deportations of spouses of United States citizens. Many will be barred from returning to the United States for 10 years for two reasons – being deported, INA § 212(a)(9)(A), and for being in the United States unlawfully for more than one year and then departng. INA § 212(a)(9)(B). As for the second reason, astute readers may point out that “unlawful presence” does not accrue if a “properly filed” adjustment of status application is pending.  However, if USCIS lacked jurisdiction to consider the application, was it validly filed? This may be a time for aliens who are accruing 180 days or a year of days since their visa waiver program admission expired to leave the country or face a three and ten year bar in addition to the bar because of being deported. Granted, both bars are waivable, but one must consider the bases for the waivers and the time involved in getting the waivers. More hard choices for those who ignored Momeni and its equivalents in other circuits.


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