USCIS finally issues a policy memo on visa waiver overstays.

Tuesday, November 19th, 2013
By: Jonathan MontagJ.D.

I have blogged many times on visa waiver entrants to the United States and their ability to adjust status. Case law had provided some bad interpretations of the ability to adjust status, particularly for people who overstay their visa waiver admission period of stay — ninety days. In a memo dated November 14, 2013,¬†USCIS finally announced its position about visa waiver adjustments. Essentially:

1. Visa waiver entrants can adjust status as immediate relatives (parents, spouses, children under 21 of citizens) even if they overstay their period of admission;

2. Visa waiver entrants who are apprehended by ICE and ordered removed cannot adjust status unless ICE vacates the removal order;

3. Visa waiver entrants whose adjustments are denied cannot seek review in immigration court, except,

4. Ninth Circuit visa waiver entrants who file their adjustments before their period of stay ends can seek review in immigration court of a denial of their adjustment applications;

5. Visa waiver applicants who are denied admission to the United States but indicate that they are seeking asylum and are released from¬† detention on parole, can file for adjustment of status, but USCIS will consider their mode of entry a negative factor that weighs against granting adjustment of status as a matter of USCIS’s discretion.

Nothing in the memo indicates that a visa waiver overstay should be in any worse position as far as receiving permanent residence status as a matter of discretion than a normal adjustment of status applicant.

So, visa waiver entrants who seek to adjust status, here is my advice — do it but don’t get caught by ICE before you become a permanent resident. Posted November 19, 2013.




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