Despite promising two years ago that it would announce a policy regarding whether a person can file for adjustment of status after his period of authorized stay as a visa waiver applicant ended, USCIS has not announced a uniform policy. Some USCIS districts are adjudicating visa waiver adjustments for those who file after their 90-day period of stay ended as routine cases and others, like the San Diego district, are making “case by case determinations” as to whether to allow the adjustment adjudication to go forward. Some circuit courts, namely the Seventh and Ninth, have decided that there is no right to adjust status if one files for adjustment after the 90 day period of stay. Others have ruled only that once a late-filed adjustment is denied, there is no right to administrative or judicial review of the decision but have not questioned the right to file for adjustment of status after the 90 day period. All this was discussed here.
Most recently, the Second Circuit ruled for a second time on judicial review in a Visa Waiver case, Shabaj v. Holder. The Second Circuit held in a April 12, 2010 decision that as a visa waiver applicant, in this case one who filed for adjustment of status five years after his admission, Mr. Shabaj had no right to review in immigration court of a removal order after the denial of an adjustment of status. To be exact, Mr. Shabaj argued before the court that he should not be subject to a restriction on review of the denial of his adjustment of status application because he entered with a false Italian passport and was not really eligible to enter under the visa waiver program. The Shabaj court rejected that argument, holding that if you enter under the visa waiver program, you are subject to its terms – and unsurprising decision as the BIA held essentially the same thing eleven years earlier.
Shabaj was back to the court of appeals in a decision issued on January 15, 2013. Say what you want about Mr. Shabaj, he was determined. This time he was not suing because he could not get review of his adjustment of status application, but because he could not get review of the denial of a fraud waiver he needed to adjust status because of his using a false passport. Interestingly, the Second Circuit dismissed his appeal not because he could not file for adjustment after the ninety day period of stay of a visa waiver entrant or that he could not get judicial review of anything but an asylum denial specifically because he was a visa waiver entrant, but because judicial review is not available to those seeking review of the discretionary fraud waiver except when raising constitutional claims or questions of law in a petition for review of a removal order. While it is true that Mr. Shabaj could not seek a petition for review of his removal order because he was a visa waiver entrant, this is not the same as saying he is barred from review of the fraud waiver determination because he was a visa waiver entrant (who filed after 90 days). So, on the positive side, the Second Circuit could have joined other circuits in finding no review of collateral issues (in this case, not the adjustment denial itself, but denial of the fraud waiver denial) to late-filing visa waiver adjustment applicants or that Mr. Shabaj had no right to adjust status at all, but instead left it at his being ineligible to review the denial of a fraud waiver of an otherwise valid adjustment of status application.
USCIS is promising to issue policy manuals on the laws it administers. So far it has issued a policy manual on naturalization. Presumably, when USCIS issues the manual on adjustment of status, we will see its policy on visa waiver adjustments and we will finally get some clarity and, hopefully, uniformity. Posted February 10, 2013.