Background
The Visa Waiver Program (VWP) allows foreign nationals of 37 designated countries to enter the United States for up to 90 days for business or pleasure without first obtaining a visa. To be eligible for VWP, an applicant must not have been convicted of any serious crimes, or otherwise be inadmissible due to health or national security reasons. Additionally, they are not allowed to extend or change their status, and they must also agree to waive their right to contest any action for removal. Under limited circumstances, the USCIS may agree to grant a 30-day period of "Satisfactory Departure".
Visa waiver entrants are also not allowed to adjust status to become permanent residents, although they may apply for political asylum. However, visa waiver entrants who are immediate relatives of U.S. citizens are allowed to apply for adjustment of status pursuant to section 245(c)(4) of the Immigration Act. There has been some confusion as to exactly when and how they may apply for adjustment as immediate relatives of U.S. citizens. The recent memo provides some guidance on this issue.
According to a November 14, 2013 policy memo issued by the DHS, USCIS field offices are asked to adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the United States under the VWP. This policy applies even if the I-485 adjustment application is filed after the 90-day period of admission. The only exceptions are that (1) ICE has issued a removal order; (2) The adjustment applicant is under investigation for, has been arrested for, or has been convicted of, an egregious public safety offense, or (3) There are fraud and/or national security issues that require resolution.
The policy memo explains that, although INA section 217 precludes a visa waiver entrant to contest removal action taken by the ICE, it does not curb DHS authority to accept and adjudicate I-485 adjustment applications filed by VWP overstay. DHS has statutory authority to grant adjustment to an eligible applicant as a matter of discretion, and has delegated this authority to USCIS.
Removal Order and Refusal of Admission
ICE has the authority to issue removal order against visa waiver applicants and entrants. The policy memo states that USCIS should deny adjustment to foreign nationals subject to a removal order as a matter of discretion. However, should ICE withdraw or rescind the removal order, USCIS may then approve the application. Similarly, visa waiver applicants who are refused admission are also not eligible for adjustment. Although refused applicants are not subject to the legal consequences of a removal order, they have no right to appeal the refusal.
In the event that an foreigner's actual removal is deferred pending an asylum-only proceeding before an immigration judge, and if the person is paroled under INA section 212(d)(5)(A), then the person as a parolee may be eligible for adjustment of status. However, the policy memo also reminds the immigration adjudication officers that refusal of admission under the VWP is a negative factor that could be a basis for denying adjustment especially if other negative factors are present.
Jurisdiction and Denied Adjustment
Normally, an applicant for adjustment has the right to review the application in immigration court. However, VWP overstays do not have appeal rights and may not request that their denied applications be reviewed by an immigration judge. The only exception is for cases filed within the jurisdiction of the Ninth Circuit. In the Ninth Circuit, a VWP overstay who filed his or her adjustment application based on an immediate relative relationship with 90 days of admission is entitled to a hearing before an immigration judge, if the application is denied by USCIS.
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