USCIS have FINALLY Publicized their VWP Policy

[wshc 46]

Allowing VWPs to apply for AOS pretty much makes applying for all other visas before coming here irrelevant. Why bother applying for any other other visas if you can just come here as a tourist and adjust status if you feel like staying?

People who overstay their visa have broken the law, and once again the Government is looking to reward those people. Where is the incentive not to overstay if all you have to do to protect yourself (and eventually become a LPR) is apply for AOS?

Things like this annoy me. Most of us here did everything the legal way, put our lives on hold for months on end and paid the required costs, and now they will let anyone do it without a valid visa?

There is something seriously wrong with that.

Maybe we are talking about two different things. I see this decision as applying only to people that are immeadiate relative (spouses) of a US citizen and are from a WVP conutry. They will be becoming an LPR eventually anyway (exceptions for criminals etc..), but instead of having to go back to their home country, (as my wife had to do 9 months ago) and be separated from their family (as my wife is now), they can stay with their family during the paperwork. This is a small victory for the little guy by giving USCIS discretion, or being more human. Something this process really needs when it comes to people doing it the legal way. There is more than enough humanity and concern from the bleeding hearts for the illegals from the south, but nobody cares about US citizens and their spouses from a VWP country. Maybe now there is a little concern for us being shown.

Although I will receive absolutely no benefit from this change and I will still have to do a 601 waiver to be reunited with my wife, I think this change is great.

[JeroenAndMichelle 28]

Personally I'm against this change. The VWP clearly states it is not ok to change status while entering the US on a VWP, so imho they shouldn't even do this. People sign the VWP and it is basically a contract as such. Changing status on a VWP is a breach of contract.

I am from a VWP country myself and could've gone that way. Instead I've chosen several years ago to go for the expensive route, with a long wait time. That is how it should be for everyone, also those from VWP countries such as my own. Seriously, why bother even going through K1 or K3 if you can just go on VWP and change status without any consequences. It's just wrong.

[JimVaPhuong 4,863]

I've read quite a few of Mr. Montag's legal blogs. I generally have a lot of respect for his opinions. He takes a rational view of a situation and then tries to see it in light of the law. Mr. Sapochnik, while obviously a very knowledgeable attorney, seems to have a tendency to interpret things as he would like them to be. He interpreted the jurisdiction memo as being the end of the San Diego field office's denials - it wasn't. If jurisdiction was ever a question then the San Diego office would have been refusing to accept AOS petitions for lack of jurisdiction rather than denying them. This memo, if it's actually worded the way that Mr. Montag describes it, is much less ambiguous. Field offices are instructed to adjudicate AOS petitions for VWP overstays on their merits unless there is a removal order. That's also consistent with the law because, in that circumstance, an AOS petition would definitely constitute an appeal for relief and would be in conflict with the "no contest" provision of the VWP.

Mr. Montag also raises some very interesting questions. What if a USCIS field office makes it standard practice to pass a case through ICE before adjudicating it? Wouldn't ICE initiate removal proceedings because of the overstay? Wouldn't the field office then refuse to adjudicate the petition because of the removal order, even if USCIS was responsible for triggering the removal order?

He also isn't quite ready to sound the trumpets because this policy statement was delivered through AILA rather than a formally published memo, it's unknown if the source of the statement had the authority to speak on behalf of USCIS, it's unknown whether AILA got it right, or whether USCIS will ultimately change it's mind when either publishes the policy or updates the AFM.

Mr. Montag has written a number of blog posts on this subject, and he raises an important issue in many of those posts, and mentions it again in the last paragraph of this post. "We still have to see how USCIS finesses the case law problems". While Mr. Montag, and most other immigration attorneys, would like to see things go back to the way they used to be, USCIS still has to reconcile any change in policy with those circuit court decisions. The real game changer was the Momeni case. Although Momeni had a removal order, the 9th Circuit Court was clear that this wasn't the reason they were reaffirming his denial. They saw a narrow window of opportunity for a VWP entrant to adjust status if they married and applied within the 90 day period of authorized stay. Momeni did neither, so they concluded he wasn't eligible. Mr. Montag's choice of the word "finesse" is appropriate. Field offices are bound by precedent decisions in their district, and have to follow the orders of those courts.

From a practical perspective, the San Diego office could continue to do what it has been doing, and denying the bulk of VWP overstays. They wouldn't be going against either the 9th Circuit Court's decisions nor USCIS policy. The net result would be that nothing had changed. This is why it's so important to see how this policy statement affects the San Diego field office.

[JimVaPhuong 4,863]

Personally I'm against this change. The VWP clearly states it is not ok to change status while entering the US on a VWP, so imho they shouldn't even do this. People sign the VWP and it is basically a contract as such. Changing status on a VWP is a breach of contract.

I am from a VWP country myself and could've gone that way. Instead I've chosen several years ago to go for the expensive route, with a long wait time. That is how it should be for everyone, also those from VWP countries such as my own. Seriously, why bother even going through K1 or K3 if you can just go on VWP and change status without any consequences. It's just wrong.

There is a very specific exception in the law that allows a VWP entrant to adjust status based on being an immediate relative of a US citizen. There is nothing in the terms that a VWP entrant must agree to that states they can't take advantage of this exception.

There's no doubt that the law isn't fair, but the unfairness isn't focused only on people who use the VWP. Practically anyone who can get themselves admitted or paroled into the US as a non-immigrant can subsequently adjust status as an immediate relative of a US citizen. The law obviously prefers people to use the consular visa process to immigrate, but it carves out specific exceptions that, in many cases, require an immigration officer to be a mind reader and try to determine what someone's intentions were when they entered the US. The law requires the same mind-reading ability from a consular officer when determining if someone should be issued a visitor's visa, and from a CBP officer when determining if a visitor should be admitted. The playing field is clearly not level because getting past a consular officer for a visitor's visa in some countries is next to impossible.

People who use the VWP and overstay should also bear in mind that DHS is keeping score. If too many people from the same country use the VWP and overstay then that country will be removed from the VWP list. This happened to Argentina in 2002, and Uruguay in 2003.

[katiemanny 64]

Allowing VWPs to apply for AOS pretty much makes applying for all other visas before coming here irrelevant. Why bother applying for any other other visas if you can just come here as a tourist and adjust status if you feel like staying?

People who overstay their visa have broken the law, and once again the Government is looking to reward those people. Where is the incentive not to overstay if all you have to do to protect yourself (and eventually become a LPR) is apply for AOS?

Things like this annoy me. Most of us here did everything the legal way, put our lives on hold for months on end and paid the required costs, and now they will let anyone do it without a valid visa?

There is something seriously wrong with that.

I couldn't agree more with your post, USCIS is a joke. They should forbid people who come here under VWP to adjust status, same with tourists visa.

K1 or CR1 visa will be meaningless one day specially for these VWP countries.

Everyone should go the legal route apply for a k1 or cr1 visa if they want to move with their love ones permanently in the US, with exception.

Edited April 12, 2011 by katiemanny

[Harsh_77 716]

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.

I understand its a recipocal program, but how many times you see a USC trying to enter UK on VWP and then adjut their status?

Thats the question.

[katiemanny 64]

Personally I'm against this change. The VWP clearly states it is not ok to change status while entering the US on a VWP, so imho they shouldn't even do this. People sign the VWP and it is basically a contract as such. Changing status on a VWP is a breach of contract.

I am from a VWP country myself and could've gone that way. Instead I've chosen several years ago to go for the expensive route, with a long wait time. That is how it should be for everyone, also those from VWP countries such as my own. Seriously, why bother even going through K1 or K3 if you can just go on VWP and change status without any consequences. It's just wrong.

Another great post, what is more annoying is these idiots at USCIS made a policy and they don't even follow it, A person who entered the US under VWP shouldn't and cannot adjust status, is it for visiting only for 90 days. but nop people come right under their noses with their spouse or girlfriend already in the US and within 90 days they can get married and adjust status. Now you have people abusing the VWP right and left and no one does nothing about it.

Thank God USCIS is self supported, tax payers would have to riot on a daily basis until these morons follow their own policy.

Edited April 12, 2011 by katiemanny

[JimVaPhuong 4,863]

Another great post, what is more annoying is these idiots at USCIS made a policy and they don't even follow it, A person who entered the US under VWP shouldn't and cannot adjust status, is it for visiting only for 90 days. but nop people come right under their noses with their spouse or girlfriend already in the US and within 90 days they can get married and adjust status. Now you have people abusing the VWP right and left and no one does nothing about it.

Thank God USCIS is self supported, tax payers would have to riot on a daily basis until these morons follow their own policy.

Don't blame this on USCIS. The exception is written into the law, and USCIS doesn't write the laws.

[Myopia 93]

I understand its a recipocal program, but how many times you see a USC trying to enter UK on VWP and then adjut their status?

Thats the question.

Quite a few times actually.

US citizens have six months in the UK. They get way more than the 90 days that UK citizens are allowed,not to mention once the six months are up, all the USC has to do is take a short trip to France and return to the UK.

Does that seem fair? Not to me it doesn't; yet the UK has a right to design their own version of the waiver program just as the US does.

I also know US citizens who married UK citizens in order to get their indefinite stay.

I know that the US is the center of the Universe for people who come from poorer countries. The process that it takes to legally immigrate to the US can be a long and rigorous one, no one can deny that, however laws have always been written for the benefit of the people and not the other way around.

As far as I am concerned this is only good and takes us back to what it was before these lawsuits were filed that derailed the process as it was. This way it is clear for all.

I would love to see the US try to take the UK off the Visa Waiver Program. Aint gonna happen, actually truth be told, most British Citizens coming to the USA is not the ultimate dream so Im sure the Brit VWP adjusters will always be small.

Edited April 12, 2011 by Myopia

[Myopia 93]

I've read quite a few of Mr. Montag's legal blogs.

He also isn't quite ready to sound the trumpets because this policy statement was delivered through AILA rather than a formally published memo, it's unknown if the source of the statement had the authority to speak on behalf of USCIS, it's unknown whether AILA got it right, or whether USCIS will ultimately change it's mind when either publishes the policy or updates the AFM.......................

From a practical perspective, the San Diego office could continue to do what it has been doing, and denying the bulk of VWP overstays. They wouldn't be going against either the 9th Circuit Court's decisions nor USCIS policy. The net result would be that nothing had changed. This is why it's so important to see how this policy statement affects the San Diego field office.

Mr. Montag was not aware at the time of writing that blog entry of the presence of the memo/advisory that was posted on the USCIS intranet.

This is no longer two lawyers interpreting what they can see on the AILA site. This is now black and white for all of us to read.

I find Mr. Sapochnik to be an eager advocate even if he made some mistakes.

The facts remain that this new direction from USCIS does seem to answer the burning question that many have opined needed to be answered. The question being, "Does applying for adjustment of status on the VWP constitute asking for cancellation of removal?"

USCIS have said no it doesn't constitute this when it comes to adjudicating applications even with an overstay, now if you are in removal proceedings then this is a whole other ballgame. In that case it would seem to be difficult but at this point they are placing those cases on hold until further guidelines. So one part of the question is answered and the other is not.

San Diego is it's own government. I would be surprised if they started to adjust VWP because they seem so dogmatic at denying them which is so strange being that it is a lone office among the other districts in that state.

I would not advise any VWP overstayers to adjust in San Diego. As we have seem from the VWP denials on this board that all came from San Diego, nothing seems to have changed and I believe it will be business as usual.

Edited April 12, 2011 by Myopia

[Myopia 93]

So here it is from USCIS intranet.AILA arent some bootleg organization that makes things up as they go along.

USCIS

4.Adjustment of Status for Alien Immediate Relatives Admitted Under the Visa Waiver Program

AILA is concerned that USCIS has not yet provided guidance to the field with respect to the eligibility of an alien who was admitted under the Visa Waiver Program (“VWP”) to adjust status as an immediate relative under INA § 245 at any time prior to the removal of the alien under INA § 217. Several USCIS District Offices are holding in abeyance immediate relative adjustment of status applications by applicants who entered under the Visa Waiver Program and whose VWP 90-day admission expired prior to the filing of the Form I-485, and at least one district is intending to deny such applications (AILA Doc. No. 11028150).4

The Solicitor General has acknowledged the adjustment eligibility of an alien admitted under the VWP in a brief in opposition to certiorari filed in Bradley v. Holder, Case No. 10-397 (AILA Doc. No. 10122752).5 In the brief, the Solicitor General acknowledged at page 9:

In general, VWP aliens are excepted from eligibility to seek adjustment of status, but those who qualify as immediate relatives fall within an exception to the exception. See 8 U.S.C. 1255©(4). Immediate relatives therefore are subject to the general rule that DHS may grant adjustment of status, “in [its] discretion and under such regulations as [it] may prescribe.” 8 U.S.C. 1255(a). But nothing in that general rule, or in Section 1255©(4),

4 See “Questions and Answers from the San Diego USCIS – AILA Liaison Meeting, January 11, 2011,” available at http://www.aila.org/content/default.aspx?docid=34522

5 http://www.justice.gov/osg/briefs/2010/0responses/2010-0397.resp.pdf

6.provides that VWP aliens who are immediate relatives must be able to seek adjustment of status in removal proceedings. To the contrary, as the court of appeals explained, VWP aliens have waived any opportunity to use adjustment of status, or any ground except an application for asylum, to challenge removal. Pet. App. 15a (citing Bayo, 593 F.3d. at 507). (Emphasis added).

In this brief, the Department of Justice confirms that USCIS may continue its longstanding policy of adjudicating applications to adjust status for immediate relatives who have entered and overstayed a VWP admission, and those applications may be approved in its discretion.

Notably, the opinions of the Solicitor General, when made to the United States Supreme Court, are the position of the United States. In his brief to the Supreme Court, the Solicitor General synthesized the rules of law from the different courts of appeal decisions such as Bradley v. Attorney General, — F.3d –, 2010 WL 1610597 (CA3 April 22, 2010); McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009); Nose v. Attorney General of the U.S., 993 F2d 75 (CA5 1993); Lacey v. Gonzales, 499 F.3d 514 (6th Cir. 2007); Bayo v. Napolitano, 593 F.3d 495 (CA7 2010) (en banc); Lang v. Napolitano, 596 F.3d 426 (CA8 2010); Zine v. Mukasey, 517 F.3d 535 (CA8 2008); Freeman v. Gonzales, 444 F.3d 1031 (CA9 2006); Momeni v. Chertoff, 521 F.3d 1094 (CA9 2008); Ferry v. Gonzales, 457 F.3d at 1117 (CA10 2006); and Schmitt v. Maurer, 451 F.3d 1092 (CA10 2006).

Central to several of the cases is that the aliens in each were attempting to interpose adjustment of status as a defense to removal. The courts found that they waived the right to do so by gaining admission under the VWP. While we are aware that courts in McCarthy, Momeni, and Bayo state that VWP aliens who overstay their 90-day periods of admission are ineligible to adjust, those pronouncements were outside the scope of issues before those courts.

Moreover, courts in McCarthy, Momeni, and Ferry, state that VWP aliens only forego the right to contest removal through adjustment, not the right to adjustment through proceedings before USCIS, even when filing for adjustment after the expiration of the 90-day period. In McCarthy, the court says: “The Sixth, Eighth, and Tenth Circuits have also concluded that aliens who file for an adjustment of status after the expiration of the ninety-day period waive their right to contest a subsequent removal order.” (Italics added.) The Ninth Circuit in Momeni holds: “An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum).” (Italics added.) Similarly, the Ferry court says: “It is evident under the applicable statutes and regulations that a VWP alien who overstays his authorized time and is ordered removed has waived his right to contest that removal through an application for adjustment of status.” (Italics added.) Each is silent as to eligibility to adjust administratively before the USCIS. That is as it should be.

AILA requests that USCIS immediately provide guidance to the field clarifying that an alien admitted under the Visa Waiver Program may adjust status as an immediate relative notwithstanding the filing of the Form I-485 adjustment application after the expiration of the VWP alien’s period of admission.

Response: 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 update on this topic we expect to issue soon.

[katiemanny 64]

Don't blame this on USCIS. The exception is written into the law, and USCIS doesn't write the laws.

Who writes the immigration laws?

[Harsh_77 716]

Quite a few times actually.

US citizens have six months in the UK. They get way more than the 90 days that UK citizens are allowed,not to mention once the six months are up, all the USC has to do is take a short trip to France and return to the UK.

Does that seem fair? Not to me it doesn't; yet the UK has a right to design their own version of the waiver program just as the US does.

I also know US citizens who married UK citizens in order to get their indefinite stay.

I know that the US is the center of the Universe for people who come from poorer countries. The process that it takes to legally immigrate to the US can be a long and rigorous one, no one can deny that, however laws have always been written for the benefit of the people and not the other way around.

As far as I am concerned this is only good and takes us back to what it was before these lawsuits were filed that derailed the process as it was. This way it is clear for all.

I would love to see the US try to take the UK off the Visa Waiver Program. Aint gonna happen, actually truth be told, most British Citizens coming to the USA is not the ultimate dream so Im sure the Brit VWP adjusters will always be small.

As you said there are some ppl who enter UK on VWP and get married and adjust their status to PR in UK but this number is far small compared to ppl entering the US.

VWP was never designed for ppl to enter and do an AOS – now there is a loophole in it that we cannot do anything about it until USCIS would fix that loophole.

If one is entering the US on VWP they are by passing the medical test / criminal background check – which are essential part of process before granting someone a PR status.

[Anh map 2,098]

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.

Will the process of adjudicating change? Will the merits be more closely scrutinized? The application of the law and policy can be done in varying degrees. Hence the question. Something that will become evident as time passes.

[Myopia 93]

Who writes the immigration laws?

Government. Welcome to the USA.