Decision on Visa Waiver Program Adjustments

[Myopia 93]

When I read the original post, I thought..........................

Head Quarters is not some advisory committee to the District Offices. They make policy; case in point the memos from ICE and USCIS regarding adjusting those in removal proceedings.

Whether the internal memo was published or written or sent or scribbled on a post-it note, the result was the same in San Diego.

How many internal memos do you think have been written about this issue in various district offices that we are not aware of? There may have been an internal memo in Philly because a VJ poster was told by the IO that they had been told to place all VWP adjudications on hold. We can only go by anecdotal evidence in those cases.

What has definitely changed is that San Diego now have clarity that indeed they do have jurisdiction to adjudicate VWP applicants. For whatever reason they didn't think they did before as they stated that over stayers could not adjust and this was not discretionary..it was office policy.

The attorney general said(and it does again clarify)

the government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust.

So if San Diego wish to keep on denying as a matter of their District Director's policy then they can but that would seem to contradict their own organizations clarified direction. Everyone has a boss that they have to gain direction from in government, especially in government. This isn't a google type company!

No one on this board is infallible but Im happy that we obviously have a plethora of intelligent members that are able to help others.

New Blood is always welcome.

[Myopia 93]

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.

The original post that I made gave more clarity. I couldn't find anything more substantial than what was on those two places either but I think that the lawyer probably cut and pasted what was on the AILA infonet site that we can't access.

[Myopia 93]

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.

The denial letter was clear. It said because the applicant had overstayed his VWP then he was not able to adjust. Open and shut case. No one knows why this was made policy in that particular office. There are any number of reasons why they chose to deny, not least the Momeni case, but the fact is they did deny and denied ALL with no discretion that was allowed to them by USCIS. Should the discretion come based on the facts or merit of each case or based on the Directors discretion alone. If the Directors discretion was binding on every adjudicator then where was the discretion.

Maybe, and this may be a stretch, the Director felt he had no jurisdiction to adjust any of the VWP cases based on Momemi and in lieu of any direction from HQ. Well now he has some!

[Myopia 93]

A discretionary decision generally is made based on the merits of each case. Momeni's case had hardly any other than he was married to a USC.

He filed for adjustment after he was taken into removal proceedings. That is an important distinction because his filing was an attempt to appeal a removal. It didnt work. The court said that they didnt have jurisdiction to hear his case and they were right.

However USCIS do have jurisdiction to adjust a case without initiating removal proceedings after the 90 days and that is the point.

San Diego placed all VWP in the same place as the VWP cases that were filed after removal proceedings and denied adjustments as a result.

To me this means if you manage to file before ICE catch up with you then you should be allowed to adjust just like any other overstayer.They may give you an opportunity to file without placing you in proceedings first even if they do catch up with you. This happened to a VWP applicant who's son was arrested for robbery and she was placed in removal proceedings. USCIS gave her the opportunity to file her petition and she did. Thats how discretion is supposed to work in my opinion.

[JimVaPhuong 4,863]

Fair enough. Let's wait and see when the memo surfaces and we see what the field offices are doing.

[Myopia 93]

Fair enough. Let's wait and see when the memo surfaces and we see what the field offices are doing.

At the last meeting with USCIS in Newark, NJ, we're informed that USCIS in Newark received instructions from HQ (DC) that VWP overstays are eligible to adjust their status even though they overstayed their status. That being sadi USCIS NWK has resumed processing of VWP Overstay matters and are looking at it on a case-by-case basis. If it is a clean case (no criminal matters, valid marriage, etc.) you should be able to adjust in NJ. USCIS always has the discretion to deny AOS matters so be prepared and careful in filing same.

So now we have a meeting and confirmation from New Jersey.

[rosie's baby 5]

So now we have a meeting and confirmation from New Jersey.

An answer to prayer. Thank you Myopia for your diligent attention to this subject!

[Myopia 93]

An answer to prayer. Thank you Myopia for your diligent attention to this subject!

I felt kinda bad when I posted the quote because I am a firm believer in " Know your sources" and I can't verify whether the poster is actually who they claim to be! But that being said I know VJ was trying to get lawyers on board in an advisory capacity so hopefully he is who he claims to be!

In any event my motivation is selfish in part because of my 13 years as a Visa Waiver Overstayer!

[Myopia 93]

Just bumping this thread to add to it.

Another Confirmation..

Putting an end to the debate about whether people that enter the U.S. through the Visa Waiver program and ESTA are considered to be "inspected," USCIS' headquarters has issued a statement that people who enter with a visa waiver are considered inspected and admitted for adjustment of status purposes.

The statement from USCIS HQ states that USCIS itself has the jurisdiction to adjudicate any adjustment of status (i.e. green card) application filed by applicants who enter through the VWP. Of course who retains jurisdiction will change if the applicant is placed in removal / deportation proceedings for overstaying their visa.

USCIS also indicated that it intends to make a statement in the near future about this issue

[Myopia 93]

Here is another lawyers opinion and I agree with him.

Very interesting!

San Diego Blog about this decision..or not?

[Deputy Purple 1,294]

Just bumping this thread to add to it.

Another Confirmation..

The issue is about Overstayers of VWP and if applying to adjust status is considered asking for cancellation of removal which they don't have the right to once they authorized stay is up. This isn't that.

[Myopia 93]

The issue is about Overstayers of VWP and if applying to adjust status is considered asking for cancellation of removal which they don't have the right to once they authorized stay is up. This isn't that.

Ok Bob. On what basis does USCIS adjust the applicants that have filed for AOS successfully, at this current time?

On what basis has Newark Office decided to take those VWP overstay adjustments off of hold and adjusted them?

There was one poster who was told that her case was on hold because she entered on VWP and they were waiting for a memo from HQ to direct them as to what to do with these cases. Her case was adjusted after this news came out about a memo from HQ. When she relayed this, someone said she was adjusted because she had a VAWA petition and VAWA petitions allow adjustment regardless. Huh? If that was the case for her, why was she told specifically that she was on hold because she had overstayed on the VWP? Why was her case on hold specifically for the overstay?

Im sorry it just takes common sense to work out what was going on.

I understand what the debate is about and I doubt that the debate will end soon because USCIS have restated that they retain jurisdiction in adjusting Visa Waiver Overstay cases. They have not addressed anything about cancellation of removal and I doubt that they will. The Bradley case is an open and shut case. USCIS retain jurisdiction to approve or deny these adjustments. They chose to deny his case. End of story.

Let's see what jurisdiction means:

Jurisdiction generally describes any authority over a certain area or certain persons. In the law, jurisdiction sometimes refers to a particular geographic area containing a defined legal authority. For example, the federal government is a jurisdiction unto itself. Its power spans the entire United States. Each state is also a jurisdiction unto itself, with the power to pass its own laws. Smaller geographic areas, such as counties and cities, are separate jurisdictions to the extent that they have powers that are independent of the federal and state governments

Exchange authority with USCIS and certain persons with Visa Waiver Overstays and it seems pretty simple to me. USCIS is a jurisdiction unto themselves. They do not have to follow what the court says as they retain legal jurisdiction, now if the Supreme Court make a statement then that is a whole other ball game but if I was a betting woman, I dont think that they will. Why should they? USCIS has already said, hey we can adjust or deny if we want, so what would be the point in them making a ruling that would affect that in any way?

On VJ there have been a handful of cases that have been denied and there have been a lot more that have been adjusted.The problem has been with the way that San Diego was denying these cases and their reasons for doing so.

Thanks anyways

[Myopia 93]

San Diego USCIS district officials stated the following:

1. They are not aware of any guidance from USCIS headquarters regarding this issue;

2. They are willing to use “parole in place,” the process where USCIS can declare that someone is no longer a visa waiver entrant and is now a “parolee,” to people who have unique reasons for not having applied in a timely fashion, i.e., before their period of authorized stay expired;

3. They are still denying cases of visa waiver applicants otherwise eligible to adjust status except for the fact that they overstayed their period of authorized stay as visa waiver entrants.

No confirmation of this. Just a FYI.

[Deputy Purple 1,294]

Ok Bob. On what basis does USCIS adjust the applicants that have filed for AOS successfully, at this current time?

Because the question was never if a VWP entrant can adjust status just if VWP overstayer can.

On what basis has Newark Office decided to take those VWP overstay adjustments off of hold and adjusted them?

There was one poster who was told that her case was on hold because she entered on VWP and they were waiting for a memo from HQ to direct them as to what to do with these cases. Her case was adjusted after this news came out about a memo from HQ. When she relayed this, someone said she was adjusted because she had a VAWA petition and VAWA petitions allow adjustment regardless. Huh? If that was the case for her, why was she told specifically that she was on hold because she had overstayed on the VWP? Why was her case on hold specifically for the overstay?

Both good questions that neither of us can answer. Was the VAWA filer in NJ?

I would surmise that one possibility in the VAWA Filer's case the IO for the VAWA case just wanted to make sure that the VWP Overstay issue didn't override the filer's VAWA rights.

Im sorry it just takes common sense to work out what was going on.

Would that be an implication that I lack common sense? I really hope not as that would be a personal attack and in violation of the TOS here. For the record I've never said anything negative to or about you.

I understand what the debate is about and I doubt that the debate will end soon because USCIS have restated that they retain jurisdiction in adjusting Visa Waiver Overstay cases. They have not addressed anything about cancellation of removal and I doubt that they will. The Bradley case is an open and shut case. USCIS retain jurisdiction to approve or deny these adjustments. They chose to deny his case. End of story.

On VJ there have been a handful of cases that have been denied and there have been a lot more that have been adjusted.The problem has been with the way that San Diego was denying these cases and their reasons for doing so.

Thanks anyways

Here is the issue in layman's terms as I understand it:

Some local USCIS offices have taken the position that Applying to Adjust Status by VWP Overstayers constitutes them Requesting a Cancellation of removal as they are immediately deportable. These offices are denying the Adjustment and deporting the applicants who waived any right to judicial review or appeal of USCIS decisions as part of the VWP.

The question of jurisdiction is only if the Appeals Courts have jurisdiction to hear an an appeal and thus far 5 of the 11 districts has agreed with USCIS that they do not.

Am I missing something?

Maybe you are too emotionally attached to this subject. I have no emotional attachment to it.

[Myopia 93]

Ok Bob. Let me rephrase that. On what basis does USCIS, currently, allow adjustment of status for those who have overstayed the Visa Waiver Program and what has changed in that sense?

Why would you think that my statement about common sense was directed to you. Granted, it was a post that was written in response to what you wrote but it wasn't supposed to infer that you lacked anything. That entire statement about TOS was a tad petty. Re-read the sentence in context and hopefully you will understand the spirit in which it was said.

Disclaimer-I am not inferring that anyone lacks or has an abundance of common sense

As I see it, the issue has become quite confusing, even for those who are legally qualified to understand the issue in detail.

The only office that, we know for sure,was denying VWP overstay adjustments is San Diego. The only reason that we know that this is happening unequivocally is because we were able to find a copy of the memo online, other than that there are no other facts that support anything else that is happening in other districts other than anecdotal evidences on VJ and random legal blogs!

If you know any other specific memos for other offices, please feel free to link them in this thread.I would love to see them.

Most understand that VWP AOS'ers have no right to appeal even if they file to adjust status within or out of the 90 day lawful stay.

I believe that some people are waiting for a memo to clarify this unequivocably, and I dont believe that is going to happen with the wording that is expected. If the memo that AILA have mentioned is the memo than it really must be anticlimactic for those waiting for a statement that states that USCIS will no longer adjust VWP over-stayers aka Visa waiver express, jumping the line, hey its not fair etc.

The only official that stated that there was to be memo, was an Immigration Officer at Newark office who informed a VJ adjuster of this fact. This was the same IO who said that the adjustee was on hold because of her VWP overstay so I suppose we should just disregard both statements seeing as neither can be proven. Right?

Its just hearsay and internet muddling.

No. Im not "emotionally attached". I don't live in San Diego.

I hope this memo is published soon so this topic can be laid to bed.

Edited March 24, 2011 by Myopia