Possible to attain B2 while on VWP in United States

[jonathanjameslee 0]

Hi everyone,

I am a Permanent Resident, wife is a USC. I am eligible to apply to become a USC.

My parents are in the UK, my father sadly passed away, I am an only child and my mother is elderly without any family to assist, She is currently visiting me in Florida.

My question is, is it possible to apply for a B2 visa for her, or should I say, for her to apply, while she is over here visiting on VWP. I just don't like the thought of her trying to get to London and the embassy etc... on her own, and as she is under 80 so will more than likely have to do that if applying in the UK.

I intend to become a USC and bring her over permanently in the future but that is not going to happen soon and she is a mess, and was even more concerned when the extra friendly Immigration officer pointed out she had been her quite often the past few years!! Never longer than three months, or more than 4 - 5 months of the year however.

So my original question...

it possible to apply for a B2 visa for her, or should I say, for her to apply, while she is over here visiting

Thanks for any help.

Jonathan

[CC90 90]

No, it's not possible.

[jonathanjameslee 0]

Thx.

[Boiler 43,720]

It is possible to apply for a visa whilst she is in the US.

She would need to interview at the consulate.

If she is having issues with the PoE due to the frequency and time she has spent here probably a risky move.

Before you consider sponsoring her look into the Health Insurance issues. That usually is a deal breaker.

[CC90 90]

Before you consider sponsoring her look into the Health Insurance issues. That usually is a deal breaker.

+1

[Harsh_77 716]

No u cannot apply for visa from within US.

As Boiler said you might want to look into health insurance before you make the move with her age it might be difficult.

[Darnell 8,478]

applying for the tourist visa (an online process to start) - doesn't matter where she is.

However, it doesn't extend her current stay and

to be granted a tourist visa, she has to attend an interview back in London.

[lost_at_sea 995]

Question: Is it likely she'll be granted a B2? Isn't the immigrant intent aspect tricky to overcome in this scenario, particularly while her VWP option has not actually been revoked?

[newacct 688]

If she is already in the US and he is not already a US citizen, it is unlikely that it would be done in time for her to adjust status while still legally present in the US (i.e., in less than 90 days).

She doesn't have to adjust status while legally present in the U.S. She can adjust status whenever he becomes a USC.

It is, in fact, legally impossible to do a status adjustment from the VWP.

Do you mean when he is a USC? Do you have any law that says it can't be done?

[jan22 2,912]

She doesn't have to adjust status while legally present in the U.S. She can adjust status whenever he becomes a USC.

Do you mean when he is a USC? Do you have any law that says it can't be done?

He has not even filed his citizenship application, let alone is ready to naturalize, so it will be months before he is a USC. You are, therefore, advocating that she remain illegally in the US while that process occurs? Given that the immigration officer was already questioning the amount of time his mother was in the U.S., this is not a road I would suggest taking -- if she had to leave the U.S. for anything (such as dealing with property in the UK), she would then not be able to return to the U.S. on the VWP and would most likely be denied a visitor visa, given the overstay and her lack of ties to the UK. Not worth the risk, IMO.

If you read the VWP and the requirements of it, it includes the provision that if entering on the VWP, you waive any right to file for a change or adjustment of status. USCIS has administratively waived that for immediate relatives of USCs, and is it fairly consistently applied for spouses and children;it seems to be less consistently applied to parents. This is confirmed in Q&As from a meetings of AILA (immigration attorneys) with USCIS in 2011 on the USCIS website (copied below). Given the fragility of the situation and his mother at this time, I wouldn't want to suggest anything that might add to the family's stress and/or create new problems when it is likely that it can be resolved with a relatively simple (again, IMO) visitor's visa application. She can then the U.S. and be given the standard 6 months stay and apply for an extension of that stay -- covering a year and giving him ample time to file for his citizenship and get it processed (at least in most cases).

USCIS Field Operations Directorate – American Immigration Lawyers Association (AILA) Meeting

October 25, 2011

Questions & Answers

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

1. AILA appreciates the guidance issued to field offices on the policy regarding procedures for adjustment of status for Visa Waiver Program (VWP) applicants (AILA Doc. No. 11040735).1 However, members continue to report inconsistencies in the treatment of these cases. AILA requests that USCIS remind the field that immediate relatives admitted on a visa waiver are eligible to adjust and to release that guidance to the public, so that AILA members and stakeholders in general can address issues that may arise in field offices that are not adjudicating applications in a manner that is consistent with the guidance.

USCIS Response: All field offices have been instructed to adjudicate I-485 applications filed by immediate relatives 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.

And, FYI, a similar question was posed at the April 2011 AILA/USCIS meeting and got the following response. Please note the emphasis placed on the word "may" in the response -- while given permission to do so, there still appears to be the discretion to deny AOS processes.

USCIS American Immigration Lawyers Association (AILA) Meeting, April 7, 2011

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

AILAs 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), 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.

[newacct 688]

He has not even filed his citizenship application, let alone is ready to naturalize, so it will be months before he is a USC. You are, therefore, advocating that she remain illegally in the US while that process occurs? Given that the immigration officer was already questioning the amount of time his mother was in the U.S., this is not a road I would suggest taking -- if she had to leave the U.S. for anything (such as dealing with property in the UK), she would then not be able to return to the U.S. on the VWP and would most likely be denied a visitor visa, given the overstay and her lack of ties to the UK. Not worth the risk, IMO.

If you read the VWP and the requirements of it, it includes the provision that if entering on the VWP, you waive any right to file for a change or adjustment of status. USCIS has administratively waived that for immediate relatives of USCs, and is it fairly consistently applied for spouses and children;it seems to be less consistently applied to parents. This is confirmed in Q&As from a meetings of AILA (immigration attorneys) with USCIS in 2011 on the USCIS website (copied below). Given the fragility of the situation and his mother at this time, I wouldn't want to suggest anything that might add to the family's stress and/or create new problems when it is likely that it can be resolved with a relatively simple (again, IMO) visitor's visa application. She can then the U.S. and be given the standard 6 months stay and apply for an extension of that stay -- covering a year and giving him ample time to file for his citizenship and get it processed (at least in most cases).

USCIS Field Operations Directorate – American Immigration Lawyers Association (AILA) Meeting

October 25, 2011

Questions & Answers

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

1. AILA appreciates the guidance issued to field offices on the policy regarding procedures for adjustment of status for Visa Waiver Program (VWP) applicants (AILA Doc. No. 11040735).1 However, members continue to report inconsistencies in the treatment of these cases. AILA requests that USCIS remind the field that immediate relatives admitted on a visa waiver are eligible to adjust and to release that guidance to the public, so that AILA members and stakeholders in general can address issues that may arise in field offices that are not adjudicating applications in a manner that is consistent with the guidance.

USCIS Response: All field offices have been instructed to adjudicate I-485 applications filed by immediate relatives 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.

And, FYI, a similar question was posed at the April 2011 AILA/USCIS meeting and got the following response. Please note the emphasis placed on the word "may" in the response -- while given permission to do so, there still appears to be the discretion to deny AOS processes.

USCIS American Immigration Lawyers Association (AILA) Meeting, April 7, 2011

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

AILAs 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), 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.

This does not disagree with the assertion that the OP's mother can adjust status from VWP out-of-status no different from any other person adjusting status. The last part concerns removal proceedings, which is not what we are talking about. All aliens who are eilgible for adjustment of status "are subject to the general rule that DHS may grant adjustment of status, "in [its] discretion and under such regulations as [it] may prescribe."" That's like not saying anything. How is that different from, say, a USC's spouse here in-status on a visa?

[jan22 2,912]

This does not disagree with the assertion that the OP's mother can adjust status from VWP out-of-status no different from any other person adjusting status. The last part concerns removal proceedings, which is not what we are talking about. All aliens who are eilgible for adjustment of status "are subject to the general rule that DHS may grant adjustment of status, "in [its] discretion and under such regulations as [it] may prescribe."" That's like not saying anything. How is that different from, say, a USC's spouse here in-status on a visa?

Not to appear argumentative, but the key sentence to which I was referring was: 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).

And the most important part of that is "...that DHS may grant adjustment of status, "in [its] discretion and under such regulations as [it] may prescribe." that says they "may" grant adjustment (not that they must or should --quite a different story) and then goes on to say that the "may" is based ".. in [its] discretion....". Again, clearly indicating there are no guarantees; its all at the discretion of DHS.

But all of this discussion is moot, since the OP is a long way from being an USC at this point anyway.

Edited September 4, 2013 by jan22

[CC90 90]

Every single AOS case is discretionary, per the INA. Even if you meet all of the requirements, BCIS can deny it for any reason and require you to get an immigrant visa.

[JohnR! 5,495]

My question is, is it possible to apply for a B2 visa for her, or should I say, for her to apply, while she is over here visiting on VWP.

She can apply while she is here - that is done electronically - but she will not be issued the visa in the US, which means at some point she will need to return home to attend her interview at the consulate.

In case you meant to change her status from VWP to B2 while in the US, that can't be done either.

[anusarma 0]

Generally, a person on a VWP cannot change his or her status while they are visiting in the United States. Ideally, she should apply through consular processing at the US consulate in the UK. Immediate relatives of US citizens are however eligible for an adjustment of status application within the 90 day authorized period. So you could have her stay until you become a USC (as long as things are moving fast in that regard) and then apply so she can adjust her status without going back?

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-8624/0-0-0-9232.html