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Immigration Law Associates, PC

CAN VISA WAIVER ALLOW PERSON TO OBTAIN A GREEN CARD?

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Those entering on a visa waiver (VWP), are currently allowed to enter the US for a period of 90 days without a visa.  Only thirty-six  countries  (36) are eligible for visa waiver entry.  This  is a program which allows citizens of specific countries to travel to the United States  for tourism or business. The program applies to the 50  U.S. states as well as the U.S. territories of  Puerto Rico and the Virgin Islands in the Caribbean, with limited application to other U.S. territories. All countries selected by the U.S. government to be in the program are high-income economies with a high Human Development Index and are regarded as developed countries.These countries include:

Europe (30)

 

Asia (4)

 

Oceania (2)

 

CAN AN OVERSTAY APPLY FOR ADJUSTMENT IN REMOVAL PROCEEDINGS?

Problems arise when a citizen of these countries decides to overstay beyond the 90 days ( which cannot be extended) in the United States.  The question is whether “ an alien who waived his right under the Visa Waiver Program ( VWP) and who has overstayed the term of lawful admission may contest his removal by applying for adjustment of status …to an immigration judge in removal proceedings.” 

In Bradley v. Holder, the government has filed a Brief in Opposition to the cert. request to the Supreme Court.  The government strongly opposes any right of the applicant to review in these circumstances based on  8 C.F.R. § 217.  While the government concedes that a VWP entrant has the ability to adjust to a legal permanent resident through marriage to a U.S. citizen or other immediate family relationship to a U.S. citizen, the application is subject to USCIS’s discretion. The USCIS then has the discretion to determine whether or not to place a VWP in removal proceedings.  In Bradley v. Holder discretion was not favorably exercised on his behalf yet the case is promising for others who overstay their 90-days.

Mr. Bradley had entered as a VWP four previous times to the U.S. and thus was considered to fully understand the terms of the program.  On his fifth entry, he overstayed his VWP for ten years before marrying his U.S. citizen wife.   He had also worked unlawfully during this period of time.  After applying for his relative petition and adjustment, the couple failed to show up for the interview before USCIS and thus their application was deemed abandoned.  The Board of Immigration Appeals denied their appeal stating lack of jurisdiction and after having sought relief in removal proceedings, Mr. Bradley was denied. The Court of Appeals also denied his appeal stating that the precedent of SIX other circuits determined that he could not adjust his status in removal proceedings after the 90 day expiration of stay.  This appeal was denied on his overall disregard of immigration laws.

Since each case on VWP is fact specific it is essential that anyone entering on such a program see an attorney for advice.

Filed under: Immigration Issues