USCIS have FINALLY Publicized their VWP Policy

[missaero 7]

vkn & jsb, I agree with your above points. I believe VWP is abused much more than students who adjust from F-1. First of all VWP is exactly that, a waiver. You get on a plane, you show up get your passport stamped and done. Tourist visas should not be allowed to be abused for purposes of adjusting status. For an F-1 you have to be admitted to a school, show adequate financial resources and go for an interview. Sure, there is abuse of this system too but 9/10 people on F-1 do not Adjust as Myopia claims since this VISA is already considerably difficult to get granted if you are from a "poor" nation. More often than not, upon completion of their studies, F-1s end up with H1Bs or simply do OPT and leave. Sure, plenty overstay and that IMO is a serious crime. The fact that F-1s do meet people (me included) and get married is not a surprise. When you are in a country for 3,4 or more years (typical for a higher degree), is it crazy to think you might have had a relationship with someone that got serious? I had all serious intent to return to the UK when I was done, but I met my husband, we hit it off and got married. Did I need to adjust status through him? No, my future employer was happy to pay for an H1B. Plenty of aerospace industry in Europe, but the PhD programs in the UK just weren't up to par for my specialization, hence why I came here. Tarring all F-1s with the one brush is grossly unfair.

[JimVaPhuong 4,863]

We're kind of getting off the topic of the thread. The subject of whether a VWP visitor should be able to adjust status is certainly worthy of debate, but at the current time the law specifically allows it if the basis is that the alien is an immediate relative of a US citizen. If you have strong feelings about this then you should write your congressman and/or senator and ask that this be included in any immigration reform legislation.

There have been a number of recent circuit court rulings that have cast doubt on whether a VWP overstay can take advantage of the AOS exception in the law. This resulted in an inconsistency in the way that field offices have been handling AOS cases for VWP overstays. The topic of this thread is a policy statement from USCIS, given in response to a question from AILA, and whether that statement will finally restore some consistency to the way that USCIS field offices are handling AOS cases for VWP overstays.

Seeing the response from USCIS in black and white is great. Thanks to Myopia for posting the link. This answers at least one of Mr. Montag's questions - whether AILA got the quote right. There are still several factors that remain to be seen.

What will this policy look like when it's added to the AFM?

What effect will this have on how various field offices are handling AOS cases for VWP overstays? We've already seen offices that were holding these cases have now resumed processing them, but what about San Diego?

How will USCIS reconcile their policy with the circuit court cases that say a VWP overstay cannot adjust status, especially the Momeni case? The opinion of the AILA is that USCIS should simply ignore the court's opinions because they weren't central to the cases being adjudicated.

While we are aware that courts in McCarthy, Momeni, and Bayo state that VWP aliens who overstay their 90-day periods of admission are ineligible to adjust, those pronouncements were outside the scope of issues before those courts.

In other words, AILA is saying that because this wasn't the issue the courts were being asked to decide then USCIS should just ignore the court's opinions on the matter. If USCIS is willing to proceed on that basis, what happens if a case lands in one of these circuit courts dealing with a VWP overstay who was NOT subject to a removal order, such as one of the cases recently denied in San Diego? What happens if the court reaffirms it's previous opinion that a VWP overstay cannot adjust status, and reaffirms the denial? How is USCIS going to handle this, since it would be diametrically opposed to this policy statement?

Opinions?

[wshc 46]

Tarring all F-1s with the one brush is grossly unfair.

Tarring all VWP overstays with the one brush is also grossly unfair.

Edited April 13, 2011 by wshc

[missaero 7]

Tarring all VWP overstays with the one brush is also grossly unfair.

Sorry, VWP is meant for tourism, 90 day stay, no living in the US, no adjustment - My opinion.

To Jim, sorry for contributing to going off topic. Yes, the loophole exists and I too will be curious to see what happens to this when this is added to the AFM. As much as this whole thing goes against my personal opinion on the matter, it is indeed now spelled out in black and white by USCIS. The issue of conflicting with the courts is going to be an interesting one and I simply don't know enough about the legal to-and-fro that's been going on to comment on that. I'm just interested to see what happens next.

[Myopia 93]

vkn & jsb, I agree with your above points. I believe VWP is abused much more than students who adjust from F-1. First of all VWP is exactly that, a waiver. You get on a plane, you show up get your passport stamped and done. Tourist visas should not be allowed to be abused for purposes of adjusting status. For an F-1 you have to be admitted to a school, show adequate financial resources and go for an interview. Sure, there is abuse of this system too but 9/10 people on F-1 do not Adjust as Myopia claims since this VISA is already considerably difficult to get granted if you are from a "poor" nation. More often than not, upon completion of their studies, F-1s end up with H1Bs or simply do OPT and leave. Sure, plenty overstay and that IMO is a serious crime. The fact that F-1s do meet people (me included) and get married is not a surprise. When you are in a country for 3,4 or more years (typical for a higher degree), is it crazy to think you might have had a relationship with someone that got serious? I had all serious intent to return to the UK when I was done, but I met my husband, we hit it off and got married. Did I need to adjust status through him? No, my future employer was happy to pay for an H1B. Plenty of aerospace industry in Europe, but the PhD programs in the UK just weren't up to par for my specialization, hence why I came here. Tarring all F-1s with the one brush is grossly unfair.

Most of what I wrote about the F1 was tongue in cheek just as the 9 out of 10 that I drew from the air means nothing.

Obviously not all F1's come with the intent to meet someone and stay in the US but if statistics were available, I bet my bottom dollar that the same amount that overstay on different visas are about the same. Yes, you could have got a H1B Visa but you would have waited years for a green card. Keep it real.

[Myopia 93]

We're kind of getting off the topic of the thread. The subject of whether a VWP visitor should be able to adjust status is certainly worthy of debate, but at the current time the law specifically allows it if the basis is that the alien is an immediate relative of a US citizen. If you have strong feelings about this then you should write your congressman and/or senator and ask that this be included in any immigration reform legislation.

There have been a number of recent circuit court rulings that have cast doubt on whether a VWP overstay can take advantage of the AOS exception in the law. This resulted in an inconsistency in the way that field offices have been handling AOS cases for VWP overstays. The topic of this thread is a policy statement from USCIS, given in response to a question from AILA, and whether that statement will finally restore some consistency to the way that USCIS field offices are handling AOS cases for VWP overstays.

Seeing the response from USCIS in black and white is great. Thanks to Myopia for posting the link. This answers at least one of Mr. Montag's questions - whether AILA got the quote right. There are still several factors that remain to be seen.

What will this policy look like when it's added to the AFM?

In other words, AILA is saying that because this wasn't the issue the courts were being asked to decide then USCIS should just ignore the court's opinions on the matter. If USCIS is willing to proceed on that basis, what happens if a case lands in one of these circuit courts dealing with a VWP overstay who was NOT subject to a removal order, such as one of the cases recently denied in San Diego? What happens if the court reaffirms it's previous opinion that a VWP overstay cannot adjust status, and reaffirms the denial? How is USCIS going to handle this, since it would be diametrically opposed to this policy statement?

Opinions?

I concur with your first observation.

I am curious as to how this will actually play out. USCIS have said clearly that adjusting with the VWP is allowed.

I still think that San Diego is an anomaly and I would be very surprised if they actually started to approve VWP overstay cases.I think the District Manager clearly has his own interpretation of the law and in spite of there having been a memo that did go out, they still remained committed to their own policy.

Do they have to follow a national memo or will they remain rigid until the AFM has been updated?

Obviously this story has not ended because there are cases that are now going to be held in abeyance. I find that a bit odd actually as if they are held in abeyance, that means that USCIS still are not clear on how to deal with the entire cancellation of removal issue.

I was wondering what would happen to those people who were denied in San Diego. I think that they probably will not be able to get a second shot within the US. I can barely find any cases online that are specifically San Diego cases so we may just have to wait and see.

[JimVaPhuong 4,863]

I concur with your first observation.

I am curious as to how this will actually play out. USCIS have said clearly that adjusting with the VWP is allowed.

I still think that San Diego is an anomaly and I would be very surprised if they actually started to approve VWP overstay cases.I think the District Manager clearly has his own interpretation of the law and in spite of there having been a memo that did go out, they still remained committed to their own policy.

Do they have to follow a national memo or will they remain rigid until the AFM has been updated?

Obviously this story has not ended because there are cases that are now going to be held in abeyance. I find that a bit odd actually as if they are held in abeyance, that means that USCIS still are not clear on how to deal with the entire cancellation of removal issue.

I was wondering what would happen to those people who were denied in San Diego. I think that they probably will not be able to get a second shot within the US. I can barely find any cases online that are specifically San Diego cases so we may just have to wait and see.

San Diego isn't the only USCIS office that's forced to do things differently because of district court decisions. For example, all USCIS field offices conduct Stokes interviews, but the New York field office is the only one (that I'm aware of) that has an actual "Stokes Unit" that is specifically charged with conducting those investigations, and that's because the Stokes decision occurred in their district. It's possible that San Diego may continue to be an anomaly, but it's unusual that it appears to be only the San Diego office because the 9th Circuit Court district covers several states, including California.

The "no contest" clause means that any decision by any immigration officer is final. It is not subject to review or appeal. VWP entrants are not entitled to the same removal process as people who enter with a non-immigrant visa. The summary removal process requires only an order from an immigration officer. There will be no hearing in front of an immigration judge, so no opportunity to request cancellation of removal.

I believe that USCIS is advising field offices to hold those cases in abeyance to determine if the removal order is executed or withdrawn. As long as that removal order is hanging over the alien's head then USCIS can't adjudicate the AOS petition without effectively granting an appeal of the removal order, which the statute won't allow them to do. If the removal order is executed, and the alien leaves the US, then USCIS can close the AOS case as abandoned.

[Myopia 93]

I believe that USCIS is advising field offices to hold those cases in abeyance to determine if the removal order is executed or withdrawn. As long as that removal order is hanging over the alien's head then USCIS can't adjudicate the AOS petition without effectively granting an appeal of the removal order, which the statute won't allow them to do. If the removal order is executed, and the alien leaves the US, then USCIS can close the AOS case as abandoned.

But wouldn't withdrawing the order be the same thing as cancellation of removal? Or would there be a difference because USCIS initiated it rather than the applicant?

[JeroenAndMichelle 28]

Since this discussion is ongoing, here a quote from that same pdf file what started this discussion, make sure to read especially the last part:

In general, VWP aliens are excepted from eligibility to seek adjustment of status, but those who qualify as immediate relatives fall within an exception to the exception. See 8 U.S.C. 1255©(4). Immediate relatives therefore are subject to the general rule that DHS may grant adjustment of status, "in [its] discretion and under such regulations as [it] may prescribe." 8 U.S.C. 1255(a). But nothing in that general rule, or in Section 1255©(4),provides that VWP aliens who are immediate relatives must be able to seek adjustment of status in removal proceedings. To the contrary, as the court of appeals explained, VWP aliens have waived any opportunity to use adjustment of status, or any ground except an application for asylum, to challenge removal. Pet. App. 15a (citing Bayo, 593 F.3d. at 507). (Emphasis added).

In other words, nothing provides that they must be able to seek AOS, and VWP aliens actually have waived their opportunity to do AOS. Just like me, and several others already said here.

Want to be safe? Go K1 or K3. VWP does still not guarantee you can actually remain with your loved one... sure, chances are greatly that you will have no problem, but question is: do you really want to take that change with the risk of being deported or receiving a ban for several years?

Edited April 13, 2011 by JeroenAndMichelle

[Harpa Timsah 13,258]

Did you read the first and second sentence in your quote? You can't pick and chose what you read.

No on here is suggesting that people use the VWP to AOS. On the contrary, entering the US with a non-immigrant visa with the intent to immigrate is visa fraud. We continually tell people on this board that fact.

These exceptions are made for the benefit of the US Citizen, not the alien. We are talking about people who already are here and overstayed.

Bottom line, it's the law.

[Rebecca Jo 1,962]

Why do people in this thread keep saying that adjusting from the Visa Waiver is breaking the law?

I mean - it's the INA that clearly allows it. The INA is the law.

So an adjustment of status is clearly within the law.

[Rebecca Jo 1,962]

I believe that USCIS is advising field offices to hold those cases in abeyance to determine if the removal order is executed or withdrawn. As long as that removal order is hanging over the alien's head then USCIS can't adjudicate the AOS petition without effectively granting an appeal of the removal order, which the statute won't allow them to do. If the removal order is executed, and the alien leaves the US, then USCIS can close the AOS case as abandoned.

I doubt that.

I really can't see USCIS issuing removal orders by the droves in order to thwart pending status adjustments. You'll see some cats over at ICE raise the hoopla if that nonsense starts.

[JimVaPhuong 4,863]

But wouldn't withdrawing the order be the same thing as cancellation of removal? Or would there be a difference because USCIS initiated it rather than the applicant?

Actually, I was referring primarily to a removal order issued by a DHS agency other than USCIS, such as CBP or ICE. Any immigration officer that catches a VWP overstay can order them summarily removed. Any removal order stands as an impediment to adjudicating the AOS application. If the removal order were withdrawn then the impediment is removed, and USCIS could adjudicate the AOS application.

Cancellation of removal is a completely different matter. It's an appeal, initiated by the alien, for relief from deportation proceedings. A VWP visitor can't file any sort of appeal.

Since this discussion is ongoing, here a quote from that same pdf file what started this discussion, make sure to read especially the last part:

In other words, nothing provides that they must be able to seek AOS, and VWP aliens actually have waived their opportunity to do AOS. Just like me, and several others already said here.

Want to be safe? Go K1 or K3. VWP does still not guarantee you can actually remain with your loved one... sure, chances are greatly that you will have no problem, but question is: do you really want to take that change with the risk of being deported or receiving a ban for several years?

What you're quoting is part of the Solicitor General's response to the writ of certiorari filed in the Bradley v. Holder case. The AILA lawyer was using this an argument that the Solicitor General's opinions in that response should constitute a basis for USCIS policy. The Solicitor General was commenting specifically about the Bradley case.

For each question and argument posed by AILA in that document, there is a comparatively brief response from USCIS. While the AILA attorney's arguments make interesting reading, the responses from USCIS are the only parts of that document that hold any real weight.

I doubt that.

I really can't see USCIS issuing removal orders by the droves in order to thwart pending status adjustments. You'll see some cats over at ICE raise the hoopla if that nonsense starts.

If you read my response above, you'll see I was referring primarily to a removal order issued by DHS agencies other than USCIS. INA 217 doesn't require the removal order to come from USCIS.

[missicy 87]

It is not cheating the system if there is no intent. I am going to keep banging that point over and over. Not everyone comes to the US with a notion that residency here is akin to owning the golden fleece. There are umpteen reasons that someone could overstay. Umpteen reasons why someone would not have got on that plane back to their own country. Not everyone comes to the Us with a spouse in mind and a plan in hand.

Why shouldn't a tourist on VWP have to go back to their country and start the process as a CR1?

And how many people can REALLY just go on a vacation or whatever and decide in the middle of the trip to leave their lives in home countries behind (school, job, bank accounts, lease or house, bills, other unfinished business...) because they met someone, fell in love and got married? Not many. That's why I think that most people that come here on VWP, get married and adjust status do that to avoid visa and that's just wrong.

[Myopia 93]

Actually, I was referring primarily to a removal order issued by a DHS agency other than USCIS, such as CBP or ICE. Any immigration officer that catches a VWP overstay can order them summarily removed. Any removal order stands as an impediment to adjudicating the AOS application. If the removal order were withdrawn then the impediment is removed, and USCIS could adjudicate the AOS application.

Cancellation of removal is a completely different matter. It's an appeal, initiated by the alien, for relief from deportation proceedings. A VWP visitor can't file any sort of appeal.

But by withdrawing a removal order, is it not effectively the same thing as cancellation of removal?

I understand that VWP entrant will not be able to file. Thats crystal clear BUT if ICE withdraw a removal, isnt that a cancellation?

Obviously USCIS are not sure as those cases will be held in abeyance.