Are visa waiver adjustments prohibited by law or dicta?

Saturday, January 29th, 2011
By: Jonathan MontagJ.D.

When last blogging on visa waiver adjustments  I discussed the murky issue of whether a person could adjust status if he or she filed an adjustment of status application after overstaying his or her period of stay, usually 90 days. I indicated that there is argument that because the courts of appeal, when hearing visa waiver removal cases, are considering their jurisdiction, holdings that they cannot review denials of visa waiver adjustments in cases where there is late filing, this does not mean that the aliens cannot adjust status. Holding that adjustment is not allowed may be dicta while holding that there is no review is the law.

The issue became more complicated when in a recent posting to attorneys in San Diego, the local American Immigration Law Association (AILA) indicated that the San Diego district was denying adjustments in its discretion – that under certain circumstances it would adjust someone.

Lamentably, on that thin reed, despite the chaos that the recent spate of visa waiver denials is causing, immigration lawyers are persisting in filing visa waiver adjustments after the alien has overstayed.

The Third Circuit recently espoused its view clearly in Tiandi Jiang v. Attorney General of U.S.:  on January 12, 2011:

We note that the Ninth Circuit subsequently narrowed Freeman  to cover only VWP entrants who petition to adjust their status during their lawful 90-day stay, see Bradley, (citing Momeni v. Chertoff). In Bradley, we joined in this narrower view, holding that an alien was not eligible to apply for adjustment of status after expiration of the 90-day VWP stay, and we noted that this narrower view was shared by six of our other sister Courts of Appeals, see id. at 242 n.7. Jiang’s application to adjust status was filed on June 3, 2009, A.R. 12, almost 8 years after he was paroled into the United States. We thus are not persuaded by his argument that the Board abused its discretion in denying his motion to remand.

Yet, rumors persist that in other California districts and in other states, visa waiver adjustment applications are being granted whether the applicant filed late or not. Please, USCIS Director, Alejandro Mayorkas, tell us what it is – law or dicta.

It is also worth noting that Momeni was decided on March 31, 2008, and was a published decision. Any visa waiver applicant who filed an adjustment application after overstaying his or her period of authorized stay after this date ignored a published precedent telling him or her not to. And it is not like Momeni was a secret. It is a published decision and it has been written about in the immigration media, also found here. Plus, I have been writing about this issue since December 8, 2005.  Posted January 29, 2011.



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