Over the past year, many local USCIS offices have prevented visitors who enter the U.S. under the visa waiver program from obtaining a green card based on marriage. In many instances, denial of adjustment of status triggers removal from the U.S. and a bar from the U.S. Hardships to families have been severe.
USCIS Headquarters is about to issue a change in this controversial policy.
Allow me to explain: Some foreigners will enter the U.S. under the visa waiver program, or 90 day holiday visa. 36 (March 2016 update: 38) countries currently participate in the VWP – Andora, Australia, Austria, Belgium, Brunie, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan and United Kingdom.
In order to use the VWP, each foreigner must agree to waive all immigration rights. There are times when a foreigner is permitted to marry and apply to change status from a visa waiver status to permanent resident green card status based on marriage. At the same time, if the USCIS chooses not to allow for AOS (Adjustment of Status to permanent residence), there is not much the foreigner can do to enforce rights since he or she waived them all by using the VWP to enter the U.S.
For those foreigners who have remained in the U.S. for more than 180 days after the visit came to an end, they are barred from returning the U.S. for a period of three years after departure. If they have been unlawfully present in the U.S. for more than one year, there is a 10 year bar.
During 2010, local USCIS offices began a trend of denying foreigners adjusting status based on marriage where the foreigner fell out of status based on the VWP. In some cases, local offices began taking steps to force the foreign spouse to depart the U.S., triggering a bar from the U.S., married or not. Naturally, for those affected by USCIS policy, there are great hardships.
Now, USCIS Headquarters has instructed the field that USCIS retains jurisdiction to adjust an alien who was admitted under the VWP, whether or not the adjustment application was filed during the alien’s 90-day period of admission. More instructions will follow. Although this announcement from headquarters simply restates the law, it’s message is good news. It appears to be signaling a policy that local offices should soften the hard line approach that has become a trend throughout 2010. It is reminding the local offices that they have the power to approve AOS even where the foreigner has gone out of status.
It is important to consult with an experienced immigration attorney to protect your interests and examine your options. Regardless of any shift in policy or any further USCIS developments, in every case you need to know how laws affect your circumstance.
When entering the U.S. on the visa waiver program, your ability to do anything other than just visit is compromised. The USCIS retains power to deny AOS in many circumstances if that is what it wishes to do.