Last year I wrote about the dangers of applying for adjustment of status if you had overstayed the visa waiver program. I’m happy to report that adjustment of status green card processing for VWP participants has undergone some positive changes in the past few months.
Prior to 2009, spouses, parents and children of US Citizens who entered the US on the visa waiver program (VWP) could safely apply for a green card in the US via adjustment of status, even if the authorized period of stay (typically 90 days) had expired. In fact, applicants who had overstayed the VWP for years were routinely issued green card through adjustment of status, especially spouses. The ability to adjust status in the US was particularly useful for those who would otherwise have a 10 year bar to re-entry if they were to return home to finish the green card processing.
Adjustment of Status Policy Change
Starting in 2009, many USCIS local officers began refusing adjustment of status applications for immediate relatives who had overstayed the VWP program. In addition, many of the applicants would then be deported. Although Los Angeles immigration lawyers did not experience this type of treatment at the LA USCIS office, many applicants who were interviewed through San Diego were rounded up and sent home.
Thankfully, the practice of automatic denial and deportation for visa waiver program adjustment of status applicants has ended. In April 2011, USCIS headquarters issued guidance to local offices instructing them to, once again, handle visa waiver program overstays exactly as they would handle overstays on other types of non-immigrant visas — approve those that are otherwise qualified, unless the applicant already has a removal order.
Although immigration lawyers throughout the US applauded this move by USCIS, it does not mean that all those who would benefit from adjustment of status should send in an application. Adjustment of status is discretionary and can be denied for a variety of factors, especially if there are negative aspects of an applicant’s background. Given that denial of adjustment of status often results in deportation, it is always advisable to consult with an immigration lawyer prior to filing any application with USCIS.
WARNING: USCIS in San Diego will still only approve VWP overstay cases where the applicant can show a “good reason” for overstaying the visa.