USCIS have FINALLY Publicized their VWP Policy

[Myopia 93]

Finally we have some movement on the whole Visa Waiver Program Overstay Adjudication issue.

This is what USCIS have said,

All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM (Adjudicator’s Field Manual) update on this topic we expect to issue soon.

This applies to SAN DIEGO and all other offices that have been denying Visa Waiver Program Adjustments and/or placing them on hold.

This is exactly what I thought was going to happen. I never thought USCIS was going to treat VWP overstays in the same way when it came to appeals but I did think that the only way that made sense would be to

a) Allow all visa waiver program adjustments because this is the right thing to do and it is allowed within the law

b) Not allow any VWP adjustments once the over stayer is in removal proceedings as this would conflict with what the courts have said.

I mean regardless of what you think about the VWP, the fact is adjusting through the VWP should be allowed just as it is with other overstayers from other Visas. It is allowed to adjust on the VWP with no consequence if you marry and file within the 30 days just in the same way as other visas.

The fact that final guidance is being drafted including an update in the field manual, I think it's pretty clear that the shoe has finally dropped.

I know some VJ'ers will want to read the memo and guidance on the USCIS intranet and so I respect anyone who still is not convinced that the course has changed BUT I think we should agree that there is change.

I think this does answer the question about whether applying to adjust is an attempt to cancel removal. If you are in removal proceedings then there is no recourse.

If there is a denial of the application then there is no recourse but if the application is bona fide then the applications will be adjusted in the same way that other applications are adjusted, based on merit.

I dont agree with this attorneys summation about a check on a form. I think he is fear mongering but it would be wrong not to mention his opinion.

Visa Waiver Program

Edited April 11, 2011 by Myopia

[Harsh_77 716]

Then this will lead to more scrutiny of the VWP when he enters the country. They will be more rejection at POE as they will start looking at all the VWP as a potential immigrant.

[mof 15]

Then this will lead to more scrutiny of the VWP when he enters the country. They will be more rejection at POE as they will start looking at all the VWP as a potential immigrant.

I doubt it - before San Diego decided that VWP overstayers should be categorically denied, VWP entrants faced no more or less scrutiny than once San Diego had that policy in place.

Fact is, you are not supposed to enter the US on a non-immigrant visa with the intent to adjust your status while you are here. However, the law has always allowed for a change in circumstance and thus, those who entered on non-immigrant visas (including VWP) were allowed to adjust if certain requirements were met.

[Myopia 93]

Then this will lead to more scrutiny of the VWP when he enters the country. They will be more rejection at POE as they will start looking at all the VWP as a potential immigrant.

I doubt that. The VWP is a reciprocal program. US citizens can go to the same countries with the same allowances as those citizens have coming here.

[snooki703 7]

So it looks like as long as ICE doesn't issue a deportation order, VWP overstayers can adjust thru USCIS?

I wonder how common it is for ICE to issue removal proceedings for VWP overstayers, and if they keep track of these things at all. Unless the overstayer committed crime/felonies, it seems like overstayers are under the radar.

[missaero 7]

Interesting ruling. I'm a little surprised and don't believe that adjustment should be allowed from VWP, makes those who spend months apart feel cheated.

[Anh map 2,098]

It will be interesting to see how these petitions are adjudicated. Will the interviews become more "Stokes" like?

The V W P is all about travel and tourism. If the rate of adjustment petitions goes up will there be heightened CBP scrutiny?

I guess we all should stay tuned.

[Myopia 93]

So it looks like as long as ICE doesn't issue a deportation order, VWP overstayers can adjust thru USCIS?

I wonder how common it is for ICE to issue removal proceedings for VWP overstayers, and if they keep track of these things at all. Unless the overstayer committed crime/felonies, it seems like overstayers are under the radar.

That is pretty much what it looks like. The thing is that most of these cases that went before the district court were not normal run of the mill cases. One had missed two AOS interviews, one had entered on a fake passport and claimed not to understand the language on the VWP and another had used the VWP over a number of years before finally filing to adjust after being in proceedings.

I can't speak personally but I know that the people I know who have been removed showed themselves to CBP/ICE/USCIS without being in any kind of adjudication process. One had gone to the airport to pick up some books that customs were holding and was picked up himself by ICE. He was put in an immigration jail and deported within six weeks. He has about 2 years left on his ten year ban and has every intention of coming back here, of course with a B1/B2 Visa.

[Myopia 93]

It will be interesting to see how these petitions are adjudicated. Will the interviews become more "Stokes" like?

The V W P is all about travel and tourism. If the rate of adjustment petitions goes up will there be heightened CBP scrutiny?

I guess we all should stay tuned.

I'm guessing that they will be adjudicated in the same way that VWP have always been adjudicated. On their merits. There have been plenty of people who have adjusted on an VWP overstay. Probably the same amount that adjusted on a F1 overstay, B1 overstay or any other visa overstay.

I can understand people being perturbed that this is possible but it always was possible and only became complicated with the various rulings that came out of certain Districts.

[Rebecca Jo 1,962]

Then this will lead to more scrutiny of the VWP when he enters the country. They will be more rejection at POE as they will start looking at all the VWP as a potential immigrant.

VWP entrants have always been scrutinized at entry as potential status adjustees.

There is nothing new there under the sun.

[Rebecca Jo 1,962]

Interesting ruling. I'm a little surprised and don't believe that adjustment should be allowed from VWP, makes those who spend months apart feel cheated.

So you think the foreign born spouse of a USC, who entered under the VWP, should not be allowed to adjust their status?

Do you think foreign born spouses of USC's, who enter on J visas or tourist visas, should not be allowed to adjust their status?

[JoannaV 173]

Personally I think they should either allow any spouse who can legally enter the US to adjust status from within (whether they enter on VWP or obtain a tourist visa) or they should allow no-one to adjust status from VWP/visitor visa (I'm not including work/study visas here), except for some extreme situation such as after travelling to visit one's spouse the home country said they would kill you if you returned or, you know, something. Or you have some accident in the US and cannot travel. As for fiances, the K1 should also be changed, which would have to depend on what they do for the spousal visas. But I really don't like the current double tiered system, in which ignorant and/or criminal-minded people win out over everyone else. (By which I'm not referring to the adjusting of status on VWP, but rather the entering on VWP with the intention of immigrating. And don't anyone take this too personally. If someone is ignorant of the rules/processes governing immigration that is not a slur or insult to them, it's just a fact. It's pretty hard to avoid being ignorant about at least some of the immigration laws ) The current system isn't fair and just doesn't make any sense. Someone who visits their boyfriend on VWP and spontaneously decides to marry can remain in the country, but I who decide on the day before travelling to marry once I arrive am then supposed to leave? But can visit again and again whilst waiting for the visa? Not that anyone seems to care what my intentions are after the fact, but I do. Plus if one just reads the instructions for the AOS forms one doesn't know that there is actually no need to prove that one did not have intentions when they entered on VWP.

If AOS is something USCIS like, then they should be even more open about that and just change the rules so more people do it. I could actually have AOS'd "legally" at one point. I had returned to the US to visit my husband, with NO intention of staying longer than 90 days and only intending to file the I-130. After filing the I-130 I did look at the AOS process though. Of course, it would have cost more. But I was also concerned that I had no way of proving that I had not intended to AOS when I entered the country, despite that being the truth. (Anyhow, I had things to do in the UK.)

My main point: the current system just doesn't make sense.

[JimVaPhuong 4,863]

Yes, this may very well be the "other shoe". Sapochnik also posted this same announcement on his blog:

http://www.visalawyerblog.com/2011/04/marriage_based_adjustment_of_s_3.html

We'll see what happens in San Diego.

[Rebecca Jo 1,962]

Yes, this may very well be the "other shoe". Sapochnik also posted this same announcement on his blog:

http://www.visalawyerblog.com/2011/04/marriage_based_adjustment_of_s_3.html

We'll see what happens in San Diego.

What pair of shoes are you talking about?

[Laura & Kyle 16]

I am hoping this decision/statement gives clarity on some of the VWP issues that are out there. I agree with JoannaV's opinion and my husband came here on the VWP. I hope that this will not be abused by those that wish to come here with intent to stay when coming on the VWP (or tourist visa, etc.) There will always be those that think they found a quicker, cheaper, better way to do it, and that way may not be the 'correct', legal, etc. way.

I do wonder will happen to those that overstay significantly and are out of status, but stay under the radar. Will the government also be doing a better job of keeping up with those that are out of status, or will it continue to be that those that overstay are not put in removal proceedings until they are arrested or do something that calls attention to him/herself?