Decision on Visa Waiver Program Adjustments

[Myopia 93]

So I decided to post it in this forum as it is the most relevant.

Seems like there has been a decision made by USCIS as relates to Visa Waiver Program Adjustments.

Remember the lawyer in San Diego who originally posted that San Diego was denying all VWP adjustments? Well this is what he says now :

Following reports from AILA chapter USCIS liaisons that a favorable resolution on the question of adjustment eligibility for Visa Waiver Program (VWP) admittees has been reached, AILA Liaision has confirmed that USCIS HQ 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.

San Diego Blog (Again)

So based on this, it seems that the directive has instructed USCIS District Offices to do what the Attorney General in January 2011 pointed to, that USCIS have the discretion to adjust Visa Waiver Program applications regardless of when the application was filed.

So in plain language, Its business as usual. We will have to see what the full story is but at this point, this doesnt seem like the gloom and doom memo that others have opined about.

Edited March 11, 2011 by Myopia

[Harpa Timsah 13,258]

Wow! I wonder what will happen to the people that got denied... would they apply again, or would the field office call the denial "discretionary?'

[Myopia 93]

Wow! I wonder what will happen to the people that got denied... would they apply again, or would the field office call the denial "discretionary?'

I know, right? I was thinking the very same thing.

For the people that are still here in the US that were denied specifically because they applied after the 90 days have passed, there could be a possibility that they could apply again.

The question is how will a denied VWP applicant attempt to get their case reopened when it has been denied if appeal of a decision isnt allowed.

Maybe writing to the Director of the District Office and asking for discretion in this matter would work. The Director always had the ability to allow a case to be looked at again and with these new directives, he could do this easily.

This just opens a whole new can of worms.

That may explain why one of the VJ posters had a denial that said," denied without prejudice". I thought that was kind of odd that they would note the case like that, especially when it was a VWP adjustment case. If its denied without prejudice that must mean that they are free to refile with the correct evidence.

It may be those people are out of luck and USCIS will say, as you suggest, that it is discretionary.

We will have to see!

For me, I'm glad (for obvious reasons), it has been overwhelmingly difficult worrying what USCIS' next move was going to be.

[doctorbeat 6]

Well thank **** for that!

I nearly had a heart attack when I saw the topic title, and the page seemed to take an eternity to load.

I expect there will be some way for people who were denied to reapply. On the forms, it asks if you've applied before, so I expect they could attach a letter explaining what happened.

Doesn't seem fair that they should have to pay the fees again, but I imagine they will be delighted nonetheless.

We're still aiming to get the packet sent off today, we just want to get this over with now.

Myopia, thanks for keeping your finger on the pulse and letting everybody know

[JimVaPhuong 4,863]

The policy statement in the DHS response to the Bradley v Holder Supreme Court case was in response to the plaintiff's assertion that jurisdiction should be given to the immigration judge when the alien is in removal proceedings, as would normally be done in non VWP cases. DHS made the argument that USCIS retains jurisdiction in support of the policy of denying AOS to VWP overstays. I don't see how reiterating that policy to USCIS field offices changes anything. I don't recall anyone whose AOS was denied because the USCIS field office claimed they lacked jurisdiction. In each case the field office was asserting it's jurisdiction.

I think Mr. Sapochnick is misreading the message from USCIS (again). Jurisdiction has never been the issue here. The question is whether USCIS can deny AOS on the basis that it constitutes a form of appeal when someone has overstayed - something which a VWP entrant has waived the right to do. Until we see a memo from the director that addresses this then the other shoe hasn't dropped, and the fat lady hasn't sung.

[doctorbeat 6]

I thought that the field office in SD had received a memo telling them that all AOS overstayers must be denied?

Seems to me that took away their jurisdiction to approve cases.

The impression I got was that this new memo is telling them that they still have jurisdiction to approve even after the 90 days.

I don't profess to understand, as I am not a lawyer, but at least the memo wasn't the dreaded one we were expecting, ie. a similar one to the one the SD field office received telling them they must deny overstayers.

JimVaPhuong, I mean no offence, and you certainly seem to know your stuff, but are you actually an immigration lawyer or an enthusiastic amateur?

[Myopia 93]

The policy statement in the DHS response to the Bradley v Holder Supreme Court case was in response to the plaintiff's assertion that jurisdiction should be given to the immigration judge when the alien is in removal proceedings, as would normally be done in non VWP cases. DHS made the argument that USCIS retains jurisdiction in support of the policy of denying AOS to VWP overstays. I don't see how reiterating that policy to USCIS field offices changes anything. I don't recall anyone whose AOS was denied because the USCIS field office claimed they lacked jurisdiction. In each case the field office was asserting it's jurisdiction.

I think Mr. Sapochnick is misreading the message from USCIS (again). Jurisdiction has never been the issue here. The question is whether USCIS can deny AOS on the basis that it constitutes a form of appeal when someone has overstayed - something which a VWP entrant has waived the right to do. Until we see a memo from the director that addresses this then the other shoe hasn't dropped, and the fat lady hasn't sung.

Let's face it, a lot of the information thus far has been conjecture and opinion.

As I read it (And you can be sure that I will find it) this latest development has nothing to do with that case at all.

This is what that attorney said

Following reports from AILA chapter USCIS liaisons that a favorable resolution on the question of adjustment eligibility for Visa Waiver Program (VWP) admittees has been reached, AILA Liaision has confirmed that USCIS HQ 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.

The important part of this statement is the part that is underlined and in bold. What does that mean to you and how do you think that the attorney misunderstood this?

If USCIS do not retain jurisdiction this would suggest that they do not have the right to adjust VWP applications that are filed after the 90 day period because it constituted an appeal.

What I understand is that USCIS are affirming, in policy, that they DO have the right to adjust these applications regardless of what the appeal courts have said and regardless of when the application was filed.

A uniform policy is better than a piecemeal one. Don't you agree?

What is it that you are expecting? A memo that says that based on five courts opinion USCIS have decided that all twelve districts are now bound to deny all VWP as they constitute an appeal if adjudicated?

The shoe looks as if it has dropped, Jim, you just didn't hear it.

[Myopia 93]

I thought that the field office in SD had received a memo telling them that all AOS overstayers must be denied?

Seems to me that took away their jurisdiction to approve cases.

The impression I got was that this new memo is telling them that they still have jurisdiction to approve even after the 90 days.

I don't profess to understand, as I am not a lawyer, but at least the memo wasn't the dreaded one we were expecting, ie. a similar one to the one the SD field office received telling them they must deny overstayers.

What's funny is that the only reason we know that a memo exists is because that attorney posted it!

I agree with you in your summation and I love this stuff. I worked within the judicial process in the UK and loved the way that the law works. Its beautiful.

Edited March 11, 2011 by Myopia

[JimVaPhuong 4,863]

I thought that the field office in SD had received a memo telling them that all AOS overstayers must be denied?

Seems to me that took away their jurisdiction to approve cases.

The impression I got was that this new memo is telling them that they still have jurisdiction to approve even after the 90 days.

The director of the San Diego field office wrote that memo to the IO's working at the San Diego field office. It wasn't a national policy memo. It affected only the San Diego field office, and was apparently based on the Momeni case. To an individual IO working at the San Diego office it probably didn't make any difference where the memo came from. The memo still established policy that the IO would have been obliged to follow.

There is a huge difference between being bound by policy and lacking jurisdiction. When an IO is bound by policy then they might not have the discretion to adjudicate the petition as they normally would, and are more or less forced to issue a decision that conforms with the policy. If they lacked jurisdiction then they would have no authority to make any decision whatsoever.

One of the challenges Bradley made in their request for cert to the Supreme Court was that an immigration judge should have jurisdiction to decide an AOS case when a VWP overstay is in removal. DHS argued that USCIS retained jurisdiction because a VWP overstay did not have the right to appeal in an immigration court.

I don't profess to understand, as I am not a lawyer, but at least the memo wasn't the dreaded one we were expecting, ie. a similar one to the one the SD field office received telling them they must deny overstayers.

We don't know what the memo said, other than what Mr. Sapochnick has commented about it. USCIS hasn't published it yet. Who knows - maybe it DOES tell field offices that they are to adjudicate AOS petitions for VWP overstays just as they would adjudicate any other AOS petition. We'll know when we get a chance to see the memo.

JimVaPhuong, I mean no offence, and you certainly seem to know your stuff, but are you actually an immigration lawyer or an enthusiastic amateur?

An obsessed amateur.

Following reports from AILA chapter USCIS liaisons that a favorable resolution on the question of adjustment eligibility for Visa Waiver Program (VWP) admittees has been reached, AILA Liaision has confirmed that USCIS HQ 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.

The important part of this statement is the part that is underlined and in bold. What does that mean to you and how do you think that the attorney misunderstood this?

If USCIS do not retain jurisdiction this would suggest that they do not have the right to adjust VWP applications that are filed after the 90 day period because it constituted an appeal.

What I understand is that USCIS are affirming, in policy, that they DO have the right to adjust these applications regardless of what the appeal courts have said and regardless of when the application was filed.

A uniform policy is better than a piecemeal one. Don't you agree?

What is it that you are expecting? A memo that says that based on five courts opinion USCIS have decided that all twelve districts are now bound to deny all VWP as they constitute an appeal if adjudicated?

The shoe looks as if it has dropped, Jim, you just didn't hear it.

Read my answer to doctorbeat above. If USCIS previously did not have jurisdiction then they would not have been able to deny. Issuing a binding decision of any sort requires jurisdiction. If USCIS had simply been refusing to accept AOS petitions then that could have been interpreted as a lack of jurisdiction. But they weren't refusing to accept them. They were issuing denials. Mr. Sapochnick even posted a copy of one of the denial letters in a previous blog post:

http://www.visalawyerblog.com/2010/09/visa_waiver_overstay_and_marri_1.html

Nowhere in the letter did the IO claim to lack jurisdiction to issue a decision. In fact, the district director stated:

In view of the above stated facts, you are inadmissible to the United States and ineligible for adjustment of status. Accordingly, your adjustment of status to permanent resident is

denied

.

There is no question that IO's have jurisdiction to decide these cases. At most field offices, they also have the discretion to approve them. What was different at the San Diego office was that the director issued a policy memo instructing IO's that they were to deny.

Actually, there have now been seven circuit courts that have essentially decided the same. That's a majority of them. No, I would not be surprised if USCIS issued a directive contradicting the findings of these courts, and instructing field offices to adjudicate AOS for VWP overstays just as they would for everyone else. I would, however, be surprised if anyone is expecting that this what USCIS will do.

Unless a policy memo is issued that specifically addresses why field offices were denying AOS for VWP overstays, and not just rehashing the argument they made in the Bradley case, then the shoe has not dropped yet.

Anyway, if a new policy memo has been sent to the field offices then we should hopefully see it published soon.

[Myopia 93]

I see where you are coming from, Jim, but it does seem to me that stating this,

USCIS HQ 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

is pretty self explanatory and it may be presumptious for us to think that any memo will be published. The San Diego memo (albiet a DO memo) wasn't published.

The important part for me is whether or not the adjustment was filed during the 90 days. That suggests that the ability to adjust these applications are retained regardless when the application was filed.

I think the Bradley case is a red herring for these cases and I dont see how it can have any bearing on this matter simply because this has been issued before the case is closed. Bradley was denied because he circumvented Immigration laws including the VWP violation but he did have the opportunity to adjust at one point. Missing the appointment doomed him.

Maybe there is another case that we missed.

We shall see.

[caeremonarius 26]

I thought that the field office in SD had received a memo telling them that all AOS overstayers must be denied?

Seems to me that took away their jurisdiction to approve cases.

The impression I got was that this new memo is telling them that they still have jurisdiction to approve even after the 90 days.

I don't profess to understand, as I am not a lawyer, but at least the memo wasn't the dreaded one we were expecting, ie. a similar one to the one the SD field office received telling them they must deny overstayers.

There seems to be a misunderstanding about what has been going on at the SD office. The SD field office did not RECEIVE a memo to deny VWP overstayers. The director of the SD field office ISSUED a memo to IO's in that office to deny all VWP overstayers. That is within the discretion of that USCIS field office to make this their local policy. As far as I can tell, this new memo hasn't really changed anything. It's always been within the discretion of the USCIS to approve or deny VWP overstayers. Some field offices (such as Columbus, where my wife successfully adjusted status) have used their discretion to approve such applicants. Others, such as SD, have used their discretion to deny them. Still others, such as Philadelphia, have put such applicants on indefinite hold. All these decisions are within the discretion of the USCIS, represented by their various field offices, individual directors and IO's.

When I read the original post, I thought, "I don't see how this changes anything." If things were always up to the individual field offices and IO's, and the memo says that the USCIS has discretion adjust status or not, then nothing is different. If the SD office continues to use its discretion to deny all VWP overstayers, then that will continue. Maybe the offices that have had applicants on indefinite hold will now make a decision, but that doesn't mean that they'll automatically adjust status. They may use their discretion to follow the SD example; or maybe they'll just leave it up to the individual IO. As Jim said, if a particular office's policy is already set by its director, then the IO would be obliged to follow that policy.

JimVaPhuong, I mean no offence, and you certainly seem to know your stuff, but are you actually an immigration lawyer or an enthusiastic amateur?

Jim may be an amateur, but even a cursory browsing through VJ would show that he's one of the most knowledgeable amateurs around. He's done his research, knows his limits (he never has qualms about telling people to find a good attorney), and has helped numerous people on VJ.

Good luck to all!

AJ

[doctorbeat 6]

An immigration lawyer calls it a "favorable resolution"

A guy on an internet forum makes a semantic argument

about the word "jurisdiction"

Why is it a semantic argument? Remember we are reading a blog, not the actual memo.

The blog is explaining in layman's terms what the situation is.

If you replace "jurisdiction" with another word like "power", "authority", "discretion" or whatever and read the blog post again, it is obvious what it means.

If you concentrate on the word "jurisdiction", then none of the rest of the post makes any sense.

Semantic arguments are very important in law, but not in blog posts.

[JimVaPhuong 4,863]

An immigration lawyer calls it a "favorable resolution"

A guy on an internet forum makes a semantic argument

about the word "jurisdiction"

Why is it a semantic argument? Remember we are reading a blog, not the actual memo.

The blog is explaining in layman's terms what the situation is.

If you replace "jurisdiction" with another word like "power", "authority", "discretion" or whatever and read the blog post again, it is obvious what it means.

If you concentrate on the word "jurisdiction", then none of the rest of the post makes any sense.

Semantic arguments are very important in law, but not in blog posts.

The terms "power", "authority", and "discretion" mean essentially the same thing as jurisdiction. It means USCIS can issue a binding decision, whether the alien is in status or not. They don't lose the jurisdiction/power/authority/discretion to issue a decision when a VWP alien is out of status.

In my opinion, which is worth as much or as little as anyone else's, Mr. Sapochnick is jumping to conclusions. He had interpreted a denial letter from the San Diego field office as being a claim of lack of jurisdiction. He also claimed the denial letter was poorly worded because of this. I read the denial letter in the context of the Momeni decision, and I came to a different conclusion. I saw the denial letter as indicating that the AOS was being denied because the application amounted to an appeal to have an inadmissibility waived, and VWP aliens can't submit appeals. Viewed in that light, the denial letter makes perfect sense. If it was a matter of jurisdiction/power/authority/discretion then USCIS would not have issued any decision - they would have simply refused to accept the application for lack of jurisdiction.

The Bradley case is very important because USCIS responded to that filing with the same argument. They claimed they retained jurisdiction after the alien overstayed and became removable, and therefore had the power/authority/discretion to deny the AOS. Bradley argued that USCIS should have lost jurisdiction to an immigration court.

I don't know why some USCIS field offices have been holding AOS petitions from VWP overstays, rather than adjudicating them. I had presumed it was because they were waiting for guidelines from the national director. If the reason was because they weren't sure if they had jurisdiction to issue a decision then this memo should clear that up, allowing them to move forward with those cases. Whether they'll adjudicate them as they would any other AOS case is still up in the air. The underlying reason that San Diego and other field offices have been denying them hasn't been addressed yet in a national policy memo, at least not in a memo that we've seen yet. Mr. Sapochnick is presuming that this memo is going to change how the San Diego office has been handling these cases. If it does then I'll happily admit that I misunderstood what was going on.

BTW, a lawyer is just like anyone else. Some are excellent. Some are idiots. Most are somewhere in between. If I had $50 for every time a lawyer gave me an opinion that turned out to be wrong then I'd be able to retire.

[doctorbeat 6]

Ok, I understand that with some awkward mental gymnastics, one could interpret it in the negative way you suggest, but the general tone of the message does not seem to concur with that.

It's quite possible that the lawyer misinterpreted things, but it seems that he is passing on news from AILA, which is not open to his interpretation.

If this memo is meaningless or bad news, why did AILA liason report that a favorable conclusion had been reached?

[doctorbeat 6]

I looked on the AILA website and found this:

3/4/2011 - VWP Adjustment Update Coming Soon  

AILA Liaison has learned that USCIS HQ has instructed field offices on VWP adjustment eligibility. AILA Doc. No. 11030422.

Unfortunately I couldn't view the document itself because you have to be a member, but it appears that the issue under discussion is VWP adjustment eligibility.

This tells me two things:

VWP adjustment eligibility was called into question

USCIS field offices have been instructed on this eligibility or lack thereof.

We know from a lawyer that read the document that the instruction was favorable, and that it applies whether or not the application was made within the 90 day period.

It would therefore appear that they have decided that VWP overstays are eligible to adjust, and presumably that means that the application is not seen as an invalid appeal because of waived rights.