Visa Waiver Program Overview & Associated Adjustment of Status Issues

The Visa Waiver Program (“VWP”) allows citizens of certain countries to travel to the U.S. for up to 90 days without a visa, provided certain requirements are met. This saves many travelers from the headache of applying for a B-1/B-2 visa prior to entering the U.S. for temporary business or pleasure, which may delay their travel. As of May 1, 2014, the list of VWP countries will be expanded to include Chile.

Visa Waiver Program Requirements

To qualify for the VWP, an individual must be coming to the U.S. temporarily for reasons consistent with a B-1/B-2 visa, which include conducting certain types of business or traveling for tourism. Individuals must also have a valid Electronic System for Travel Authorization (“ESTA”), a machine-readable passport, tickets with an approved carrier, and a departure ticket. An individual is not eligible for the VWP and must apply for B-1/B-2 visa at a U.S. consulate abroad if he or she has ever violated status during previous entries to the U.S. or has received a visa denial in the past. If an individual is not eligible for the VWP, he or she can still apply for a B-1/B-2 visa at a U.S. consulate abroad.

Visa Waiver Program Limitations

When traveling on the VWP, individuals should note that they are waiving their rights to defend themselves in immigration court if they are found deportable. This means they may be removed from the U.S. without any recourse. The only exception to this is if an individual will apply for asylum.

Additionally, individuals cannot change to another temporary nonimmigrant status after entering on the VWP. Instead, that person must depart the U.S. to apply for a nonimmigrant visa and then reenter under that status.

Individuals also cannot extend their entry period beyond 90-day on the VWP. The only exception to this may arise during extreme circumstances, such as a health emergency or conditions that cause a flight to be cancelled or delayed for more than 24 hours. If this is the case, then U.S. Citizenship and Immigration Services may grant a VWP entrant an extension of up to 30 days at their discretion.

Applying for Adjustment of Status (“Green Card”) After Entering on the VWP

Individuals that enter under the VWP are not eligible to apply for adjustment of status, or a “green card,” unless the entrant is applying through a U.S. citizen immediate relative. Recently, USCIS has issued guidance on how its officers should handle cases where an individual enters the country on the VWP and then applies for a green card through an immediate relative. Prior to this, some USCIS officers were not sure how to handle these cases and would sometimes stall or deny these cases. In its guidance, USCIS states that officers should adjudicate green card applications for those who entered under the VWP as long as that individual has not received a deportation order, is not under investigation or has been arrested or convicted of certain crimes, and does not pose any issues related to fraud or national security.

If the application for the green card is ultimately denied, the applicant generally does not have a right to appeal that denial due to his or her entry under the VWP. An exception to this, however, is recognized in the Ninth Circuit. In 2006, the Ninth Circuit in Freeman v. Gonzales found that an individual who files for a green card within the initial 90-day VWP entry period is entitled to be placed into deportation proceedings in immigration court and, therefore, can contest the green card denial in court. The Ninth Circuit is the only jurisdiction that has expressly recognized this exception at this time, and based on the USCIS guidance, this is the only jurisdiction where the government will recognize a VWP entrants’ right to appeal a denial of a green card application in immigration court.

If you have any questions about your right as a VWP entrant or if you are concerned about filing for a green card after entering on the VWP, please contact an attorney at Minsky, McCormick & Hallagan, P.C.