Visa waiver entrants benefit from a program that Congress created allowing citizens of certain countries to come to the U.S. as tourists for 90 days or less without visitor’s visas. To get the government waiver of the usual visa requirement, the tourist has to sign a wiaver of his or her own right to contest removal other than on the basis of asylum. Visa waiver countries include Germany, the United Kingdom, Spain, Belgium, Australia, France, and others. A total of 27 countries currently have this designation.
In a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment. Under those facts, the visa waiver entrant would have to consular process and could be subject to an unlawful presence bar (3 or 10 years depending on the amount of time overstayed) which would require a lengthy waiver process to be able to re-enter the U.S. as well as grant from the Attorney General to let him come back despite a recent deportation.
What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires.
CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It’s a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor’s visa), which could result in denial of the adjustment application and eventual removal. Caselaw in other circuits may also affect visa entrants’ ability to apply for permanent residency in the U.S.
Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com
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