In general, foreigners who enter the United States as beneficiaries of the Visa Waiver Program (also known as the ESTA) may not adjust their status to permanent residency. Particularly, a foreign national who was admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from doing an adjustment of status. However, there is an exception for immediate relatives of U.S. citizens and VAWA-based applicants.
A Brief Explanation of the Visa Waiver Program
Many foreign relatives of U.S. citizens and lawful permanent residents use the visa waiver program (VWP) to make spontaneous trips to the U.S. related to business and pleasure. It also spurs commerce for visitors traveling to the U.S. for business purposes.
Under the VWP (as codified in INA § 217), foreign nationals from certain designated countries are allowed to enter the U.S. as visitors for a maximum period of 90 days without having first obtained a visa. Travelers register online with the Electronic System for Travel Authorization (ESTA) before traveling to the U.S. Therefore, many people use the terms ESTA and VWP interchangeably. The temporary visit is similar to a B1/B-2 entry for business or pleasure trips. To enter under the VWP, the applicant must meet specific requirements and must generally waive their right to contest removal from the U.S.
Eligibility for ESTA Visitors for Adjustment of Status
Foreigners who are already living in the U.S. and have an immigrant visa can generally adjust their status to permanent residence (green card holder), by submitting a Form I-485, Application to Adjust Status. Although eligibility for permanent residence includes additional requirements, there are three major criteria to adjust status. In most cases, the applicant must:
- Be physically present in the U.S
- Have a lawful entry in the country
- Have an immigrant visa available
To know more about eligibility requirements for ESTA Visitors for Adjustment of Status ask an immigration law representative to provide you with answers before moving forward on adjusting status.
Adjustment of Status for Entrants to the U.S. On Visa Waiver Program
In November of 2013, United States Citizenship and Immigration Services (USCIS) issued a policy memo that made clear their position on this uncertainty. The policy memo orders USCIS officers to process adjustment of status applications filed by immediate relatives who were last admitted to the U.S. under the VWP. This also includes I-485 applications filed outside of the 90 days of admission. While recognizing Immigration and Customs Enforcement’s (ICE) authority to remove the VWP overstays, the memo clarifies that USCIS can grant an adjustment of status rather than refer the case to ICE. The policy states that USCIS will process the I-485, application before referring it to ICE unless:
- ICE has already started a removal order process
- The adjustment of status applicant is under investigation for being arrested, or been convicted of an egregious public safety offense; or
- There are fraud or national security issues to resolve
Unless ICE is investigating an applicant or a removal order has already been issued, adjustment of status for visa waiver program entrants is normally routine.
Can An Immigration Attorney Help Me Adjust My Status as an Entrant Under the ESTA or VWP?
Before you attempt on adjusting your immigration status seek an immigration lawyer to help you weigh out your options first. Please call Gambacorta Law Office today at (847) 443-9303 for your first free consultation to talk to our attorneys.