In a recent policy memo , USCIS relaxed the process for adjustment to permanent residency for ”immediate relatives” of US citizens who have entered the US on a visa waiver.  The visa waiver allows people from certain qualifying nations to come to the US  for up to 90 days without the necessity of securing a visa from a US Consulate.  In the US,  the visa waiver entrant may engage in the same activities as one admitted with the B-1 (Temporary visitor for Pleasure) or B-2 (Temporary visitor for business ).

 

Like a visitor admitted in B-1/B-2 status, he or she may not be employed but may engage in certain business activity and may have fun.  Unlike the B-1/B-2 visas, the visa waiver may not be extended, except in very limited circumstances.  A person who entered on a B-1/B-2 visa who has overstayed or otherwise violated his status is entitled to a hearing in front of an Immigration Judge before being removed from the US.  One with a visa waiver gives up that right.  Moreover, the visa waiver entrant may not change non-immigrant status, nor adjust to permanent residency in the US…with one exception.

 

Not all visa waiver entrants must leave within the 90 days.  The law does permit  “immediate relatives” of US citizens, spouses, parents and children, to adjust to permanent residency  after having been admitted on a visa waiver.  The problem is that USCIS holds the sword of removal without hearing over the head of immediate relatives, particularly spouses of US citizens, who have entered on visa waivers and seek to adjust.   This makes planning of a couple’s marriage and their immigration or immigration of elderly parents quite cumbersome.

 

The new policy directs USCIS to adjudicate adjustment of status cases filed by “immediate relatives” of US citizens who last entered the on a visa waiver.  This directive extends to cases where the application for adjustment (I-485) is filed after the 90 day period of admission has elapsed.  The adjustment to permanent or conditional permanent residence will not be referred by USCIS to USICE for the foreign national’s removal  unless ICE has already issued an order of removal or the adjustment is under investigation because of criminal , fraud or national security issues.

 

Now, a couple may get married in the US after the foreign national spouse has entered on the visa waiver and may adjust here without the necessity of departing within 90 days or fearing removal. The same for parents of adult US citizens.  Within approximately 90 days after filing for adjustment, the foreign national spouse or parent will be granted employment authorization and advance parole, BUT may not work or depart the US until securing the advance parole/EAD that allows travel and employment authorization. Although the immigration process still needs to be well planned, this change in USCIS policy makes planning for and transitioning a spouse or parent’s life in the US much easier.

 

For more information about the Visa waiver program see: http://travel.state.gov/visa/temp/without/without_1990.html  and  http://www.aila.org/content/default.aspx?docid=46497