It used to be that foreign nationals who entered on the Visa Waiver Program (VWP) could safely marry a United States citizen and apply for a green card through marriage via the adjustment of status process, even if the period of authorized stay had expired. Being able to get a green card through adjustment of status, instead of having to travel to their home countries, had many benefits for these applicants. First, most of the applicants who were out of status would have triggered a three or ten year overstay bar the moment they left the US. In order to get their visa approved at the foreign embassy or consulate, they would have had to get a hardship waiver. Additionally, because the entire adjustment of status process is handled within the United States, applicants are permitted to stay and work while they are waiting for the green card to be approved. Green card applicants who apply abroad are typically not allowed to travel to the US during the process, let alone work in the US.

This ability of visa waiver participants who had overstayed their authorized stay to successfully adjust status in the US showed leniency on the part of immigration officials. First, the adjustment of status process is discretionary; that means that USCIS officers have broad discretion in deciding whether or not to deny an AOS application and make the applicant return home. Attempting to adjust status after entering the US as a non-immigrant is, in itself, frowned upon in certain circumstances. Second, VWP visitors give up their rights to appear before an immigration judge and can be removed expeditiously (i.e. on the next flight out) if the officer so wishes (and ICE concurs).

Adjustment of Status for VWP participants

There is a trend in many local USCIS offices to no longer be so lenient with adjustment applicants who have overstayed the visa waiver program (VWP). Roughly half of US immigration offices have begun denying these cases and deporting the applicant. Further, the 9th and 3rd US Court of Appeals have held that only those VWP applicants who file adjustment of status applications prior to the expiration date of their authorized stay are not immediately deportable at the discretion of immigration officials.

If you entered the United States on the visa waiver program (VWP) and are thinking about filing an adjustment of status application, you are strongly encouraged to contact in immigration attorney before filing any paperwork with USCIS. It may very well mean the difference between an easy green card application process and a deportation.

Source: http://www.nytimes.com/2010/05/15/nyregion/15visa.html?pagewanted=2&sq=Daniel&scp=1

An immigration lawyer will likely discuss all the ways he can get a green card including adjustment of status (if he’s already in the US), consular processing of the spousal visa, and consular processing of a K-3 visa. The conversation comes to a screeching halt, however, when you offhandedly mention that your new hubby was charged with misrepresentation during his last attempt at entering the United States because he lied about the purpose of his visit. Now the conversation turns from how wonderful it is to be a newlywed to the need for a 601 waiver in order to get a green card through marriage.

Needing a 601 waiver to get a green card through marriage is no insignificant thing.  The proper preparation of a waiver will require many hours of work on the part of both the immigration lawyer and his clients. And yes, you should hire a  lawyer to prepare the waiver. If you go it alone, and get rejected, you must start all over again if you want your husband to ever be able to get his green card.

Green card applicants do not automatically have the right to work in the United States during the adjustment of status immigration process. If the person submitting the green card application is not currently in a lawful status that allows for employment, he or she would theoretically have to wait until the green card application was approved before being able to work. However, if the green card applicant also files form I-765 along with his adjustment of status package, he may be granted temporary authorization to work while the green card application is being processed (which could take six months, to a year or more).  The temporary work authorization typically affects those applying for a green card through marriage or other family relationship as those applying for other types of adjustment typically have to be in lawful status in order to apply.

In an effort to streamline the application process, USCIS is attempting to transition the initial processing of forms away from the individual service centers and, instead, having them processed at lockbox facilities.  Green card attorneys often have to adjust their office procedures with little or no notice when immigration officials change the way green card applications are handled. Thus, starting yesterday, green card attorneys (an pro per applicants) must send form I-765 to either a lockbox facility or the Vermont Service Center, depending on why type of benefit the applicant is seeking to work under.

In the past, US citizens or lawful permanent resident spouses would use a K-3 visa to bring their husband or wife to the US. Unlike normal spousal visa processing abroad (via form I-130), a K-3 visa only granted the spouse the right to move to the United States for the purpose of applying for a green card via the adjustment of status process. During periods of high I-130 backlog, the K-3 visa was a good choice for families who wished be together in the US.

To get a K-3 visa, the US citizen spouse would file form I-130 in the United States just like he was applying for a full marriage visa. However, as soon as USCIS confirmed receipt of the application, the spouse would then apply for a K-3 visa on form I-129f. Given that I-130’s for marriage visas were processed much slower than I-129f applications, the foreign national spouse would typically receive the K-3 visa even before the marriage visa application was approved.

Recently, however, differences in processing times for the I-130 and I-129f petitions have been almost negligible. As a result, the K-3 visa has lost favor with families and immigration officials alike, prompting a change in the K-3 visa policy.

Effective February 1, 2010, if both the I-129f (K-3) and the I-130 (marriage visa) are approved by USCIS and sent to the National Visa Center, the K-3 visa application will be closed.

If the NVC receives the I-129f first, it will be processed as a K-3 visa and sent to the embassy or consulate where the marriage took place or, if married in the US, where visas are issued for the spouse’s country of nationality.

In San Francisco, California a french sidewalk vendor was recently arrested by immigration officials and is in jail. He will likely be deported back to France, without even being allowed to plead his case before an immigration judge. Murat Celebi-Ariner, a French national, entered the US on the 90 day visa waiver program and never left. He married a US citizen, but never applied for the green card to which he may have been entitled. He has been in the US illegally ever since his 90 day visa period expired. ICE officials recently picked him up and, since he is out of status, can hold him pending deportation back to France. Because he entered under the visa waiver program, he has waived his right to go before an immigration judge. Thus, he will not be afforded the chance to adjust his status via his US citizen wife, as many aliens in proceedings are permitted to do.

Should Celebi-Ariner have applied for his green card as soon as he was eligible? Probably. However, visa waiver program participants do run the risk of being deported during the adjustment of status process if they file the application after their 90 day stay has expired. Immigration officials have the right to send them home, without the benefit of a deportation hearing, if they were out of status when they applied.  Although this is not currently common practice among USCIS district offices, adjustment of status applicants who entered on the visa waiver program need to be aware of the risks associated with both applying for a green card, and failing to apply for one.

If you would like more information on applying for a green card, please contact us for a free immigration consultation today!

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Horacio’s case took a tragic turn when he lied during his green card visa interview. When asked if he had any prior problems with the law, he answered no. However, he had several traffic violations that the officers discovered during his background check. His visa application was denied, and he had to start the process all over again. He is stuck in Mexico until his waiver is approved, which could take up to a year; his triplets were born in Kentucky in the meantime. In order to qualify for the 601 waiver, he will have to prove that his American citizen wife will suffer extreme hardship if he is not allowed to return, or if she is forced to move to Mexico. Although by no means a slam dunk, three infants with presumably precarious medical status will certain give him a good shot at waiver approval.

Rebollar claims that his immigration lawyer told him to lie about his criminal history. Any reputable immigration attorney, especially a 601 waiver attorney, will tell you that lying to a consular or USCIS official is a very bad idea. These government officials have virtually unlimited access to all information available about an applicant, and they have no qualms about using it to deny an application. If the information is discoverable, assume immigration officials will discover it. Had Rebollar simply admitted his criminal history, he would have been given leave to file a waiver for that as well, if it was severe enough to even require a waiver.

Rebollar’s wife now fears that he will EWI again by crossing the border illegally using a coyote. If he does this, he will be facing a permanent bar (“9C”) that will bar him from admission for life; a waiver for this bar is not available until he has lived outside the US for ten years. Once he has accumulated one year of unlawful presence, or been deported, he cannot EWI again without being subject to this dreaded permanent bar.

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