2A or not 2A, that is the question. An immediate relative by another name is not as sweet

Sunday, August 18th, 2013
By: Jonathan MontagJ.D.

Of all the arcana that exists in the immigration law world, the subject that always seems to return is visa waiver adjustments. I have written about it quite often, such as here, where I provide the background of the issue and links to other articles.

In a nutshell, visa waiver entrants are people who lawfully come to the United States without visas. This is a benefit provided to citizens of certain countries. The law about visa waiver entry is found at INA § 217.  The downside is that visa waiver entrants cannot change their statuses to other non-immigrant categories and cannot adjust their statuses to permanent residence. If a visa waiver entrant overstays the period of admission given to him or her – a maximum of 90 days – he or she is subject to removal without any hearing. An exception is for some immediate relatives.

An immediate relative is defined as “the children, spouses, and parents of a citizen of the United States [in the case of parents, such citizen shall be at least 21 years of age].” INA § 201(b)(2)(A)(I).

The exception for adjustment of status for visa waiver entrants is found at INA § 245(c)(4), which states that adjustment of status is unavailable to “an alien (other than an immediate relative as defined in section 201(b)) who was admitted as a nonimmigrant visitor without a visa under … section 217.”

Immediate relatives are not subject to wait lists for an immigrant visa to be available as opposed to family members of citizens or residents who are subject to preference categories that are subject to a wait list.

At present, there is no wait list for spouses and children of permanent residents to obtain permanent resident visas – the 2A category. So, in some sense, they are like immediate relatives – spouses and children of U.S. citizens – for which there is never a wait list.

I received several inquiries this week from families with potential 2A adjustees who entered as visa waiver entrants asking about their ability to adjust status. The question is – Can the spouse or child of a permanent resident who entered under the visa waiver program adjust status now that there is no wait list for 2A visa petition beneficiaries? After all, being a 2A when the 2A category is current is the equivalent of being an immediate relative.

The answer is simple: No No No.

The adjustment of status statute allows some visa waiver entrants to adjust status if they are immediate relatives. 2A petition beneficiaries may be like immediate relatives in some regards but they are not immediate relatives. Confusing the two categories will land the 2A beneficiary on an airplane back to his or her home country with an order of removal. Don’t make that mistake. Posted August 18, 2013.


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