Green Card Application with USCIS for Spouses who Entered the US on a Visa Waiver (ESTA)

US Immigration law generally requires a legal entry as a prerequisite for the adjustment of status application with USCIS.  Adjustment of status application is for the green card based on marriage to a US citizen spouse.  Foreign spouses who entered the United States under the visa waiver program (VWP), also known as the ESTA visa, do have a legal entry because they are issued an I-94W as evidence of their lawful entry into the United States.  However, ESTA visa was created by Congress and heavily restricted in terms of changing status and adjustment of status.  Normally, when a foreign national enters the US on an ESTA visa, the status cannot be changed to other statuses such as student or H1-b work status.  Applying the same rule to the green card application, USCIS and courts have consistently refused to allow foreign spouse to apply for the green card in the United States after entering on a visa waiver.  This policy is consistent with Congressional intent to prohibit foreign spouses from bypassing the fiancee visa (K-1 Visa) or the Spouse visa (IR, CR), which has long waiting time by entering the US under ESTA visa and apply for the green card.

The Los Angeles District Still Approves Green Card Applications Filed by Spouses who Entered on ESTA Visa Waiver

The Los Angeles district is known to approve green card applications from spouses who entered the United States under the Visa Waiver Program.  To be eligible, both spouses must reside in the Los Angeles district jurisdiction and should apply for the green card before the ESTA 90 day period expires.  For more information, please contact my office for a free consultation with our immigration attorney on ESTA Visa Waiver adjustment in Los Angeles, California.

Courts have held that spouses who enter on ESTA Visa Waiver cannot apply for the green card within the United States

Many decisions have been handed down recently in the 3^rd, 5^th, 6^th, 8^th, 9^th and 10^th Circuits regarding the Visa Waiver Program and eligibility for Adjustment of Status (AOS), application for the green card.

The state of the circuit law, while uniform, is disappointing. The leadings cases are: Bradley v. Attorney General, — F.3d –, 2010 WL 1610597 (CA3 April 22, 2010); McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009); Nose v. Attorney General of the U.S., 993 F2d 75 (CA5 1993); Lacey v. Gonzales, 499 F.3d 514 (6th Cir. 2007); Bayo v. Napolitano, 593 F.3d 495 (CA7 2010) (en banc); Lang v. Napolitano, 596 F.3d 426 (CA8 2010); Zine v. Mukasey, 517 F.3d 535 (CA8 2008); Freeman v. Gonzales, 444 F.3d 1031 (CA9 2006); Momeni v. Chertoff, 521 F.3d 1094 (CA9 2008); Ferry v. Gonzales, 457 F.3d at 1117 (CA10 2006); and Schmitt v. Maurer, 451 F.3d 1092 (CA10 2006).

The question in these cases is whether or not a Visa Waiver Program (VWP) entrant who is admitted under §217 can seek an AOS under §245(a) as an immediate relative? In addition, is there a conflict between §217 and §245 in terms of using an adjustment as a defense to removal.

USCIS retains jurisdiction to adjudicate VWP applications, including those applications filed after the 90 day period of authorized stay as well as after a removal order is entered. USCIS continues to adjudicate these cases. The Momeni and Bayo cases may appear to suggest that they should not, but it doesn’t appear that this a statement that will change the legal standard.

The only time USCIS loses jurisdiction of an adjustment application is when jurisdiction rests with EOIR which is when removal proceedings are extant. In addition, since asylum-only proceedings are not considered proceedings for removal and VWP are not normally entitled to removal proceedings, these cases do not withdraw USCIS jurisdiction.

Challenges to fight removal in deportation proceeding for spouses who are ESTA entrants

Litigants have mounted three types of challenges to the requirement that all VWP entrants waive their right to a conventional removal hearing under §240. This would eliminate the right to contest removal unless the party is seeking asylum.

The first challenge is set forth in the 7^th Circuit decision in Bayo. In that case, Bayo entered the US on the VWP with a stolen Belgian passport, thereby entering fraudulently. Bayo married a US citizen more than 4 years later and applied to adjust status. DHS linked Bayo to the stolen passport and ordered that he be removed without a hearing as a result of the fact that he entered under the VWP and, as such, waived his right to procedural due process. Mr. Bayo argued that, because he did not understand English, he should not be subject to the waiver of his rights. The 7^th Circuit held that Bayo waived a constitutional right guaranteed to immigrants when he waived a right to a hearing. In order to waive this right, the person must be acting in both a knowingly and voluntarily manner.

In the Bradley case, the petitioner also challenged the “knowing and voluntary” aspect of his waiver as a result of his level of intoxication when he entered into it.

In both of these cases (Bayo and Bradley), the courts ruled against the litigants. These decisions were based on the litigants’ inability to prove prejudice for the violation of their constitutional right. Therefore, the procedure that is needed to know whether or not the waiver is signed “knowingly and voluntarily” is yet to be determined.

Legal Challenges to Section 217(b)(2), the no contest provision

There are three categories of challenges to the ‘no contest clause’ as applied to immediate relative adjustments citing the language barring AOS applications for those other than “immediate relatives” within § 245(c)(4).

1)      Blanket challenge to the no contest provision as inapplicable to immediate relative AOS applications no matter when the application was filed. As such, the scope of the provision is limited by §245(c)(4) and does not preclude a defensive AOS application. In the case of Zine, the petitioner sought to have his immediate relative AOS application considered while he was in removal proceedings. After seeking asylum, asylum-only proceedings began once the asylum application was denied. During these proceedings, the petitioner married and moved to re-open his removal proceedings. The Immigration Judge and the Board of Immigration Appeals refused to consider this adjustment application.

2)      An AOS application filed after the 90-day VW period expires but before a §217(b) action is taken entitles the applicant to an adjudication of the application. If the application is denied, the applicant also has the right to a hearing before an Immigration Judge to renew the application. Most courts have held that an application for AOS that is filed after the 90-day visa waiver period avoids a conflict between the no contest provision of §217(b) and the immediate relative exception of §245(c)(4).

3)      §217(b)’s no contest provision is limited in scope and does not apply to visa waiver program entrants who file to adjust prior to the expiration of the 90-day VW period. Applicants are entitled to renew or defend an adjustment in conventional removal hearings.

No court has outright discussed the effect of §245(c)(2)’s exception to the bar on being out of status when filing the AOS application. In order to challenge this, you have to argue that § 245(c)(2) and (c)(4) combine to make an immediate relative exception to § 217(b)’s no contest provision where the AOS application is filed after the applicant has overstayed their visa, but prior to a § 217 removal order being entered. This is because (c)(2) does not create a conflict, but instead a specific exception to § 217(b). For litigants in the circuits with published decisions, this might not be as important as it is for those with an absence of an explicit decision.

Legal argument that challenges the adequacy of the record.

In the Bradley case, it was argued that the record did not contain his signed waiver of rights and this element of the removal must be proven by clear, convincing evidence. In Bayo, the authority that the officer had to order the litigant deported was at issue, but this was not decided by the 7^th Circuit court. While practically speaking, “Deportation Officers” or “Supervisory Detention and Deportation Officers” can enter a removal order under § 217, the regulations limit this power only to a district director. In the record in Bayo, there were at least three different removal orders entered at different times by different individuals and it was not clear whether or not the officers who made these orders had the authority to do so. In unconventional removal proceedings such as § 217 (or reinstatement under § 241(a)(5)), there may be challenges to the record’s completeness or adequacy.

The CBP recently announced the elimination of the I-94W form. Every traveler from a Visa Waiver Program country seeking to admission to the US must seek authorization through ESTA (Electronic System for Travel Authorization) before travelling. ESTA may raise some constitutional questions and questions related to victims of human trafficking.

Immigration Attorney Assistance with VWP AOS

To learn more about the VWP AOS application procedures, please contact immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto receive a free consultation with immigration attorney.  Office hours are Monday to Saturday from 9:00AM to 9:00PM, and email consultation are open 24 hours a day, 7 days a week.  Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California.  Free immigration consultation and advice within 24 hours guaranteed.