USCIS Memo on Visa Waiver Program and Adjustment of Status:
On November 14, 2013, U.S. Citizenship and Immigration Services (USCIS) issued a
policy memorandum clarifying the eligibility of individuals who last entered the U.S. under
the Visa Waiver Program (VWP) to adjust status to permanent resident (green card).
The VWP allows qualifying foreign nationals from select countries to enter
the U.S. for up to 90 days for business or for pleasure without first
obtaining a nonimmigrant visa. Prior to traveling to the U.S. under the
VWP, individuals must have a valid
Electronic System for Travel Authorization (ESTA) approval. Currently, there are 37 countries designated for the VWP:
Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland,
Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco,
the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore,
Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan (included
among “countries” under U.S. law), and United Kingdom.
The VWP allows certain visitor activities similar to those permitted for
B-1 visas (visitors for business) and B-2 visas (visitors for pleasure).
For example, VWP visitors may perform certain business activities such
as consulting with business associates; attending educational, professional,
or business conventions or conferences; attending short-term training
sessions; and negotiating contracts. Tourist/Visit activities may include
vacationing; visiting with family or friends; receiving medical treatment;
participating as amateurs (unpaid) in musical, sports, or other similar
events or contests; and enrolling in a short recreational course of study
(not for credit toward a degree), such as a two-day cooking class while
on vacation. On the other hand, VWP entrants are precluded from certain
activities such as studying for credit, performing productive employment,
and working as foreign press, radio, film, journalists, or other information
media. Further, unlike B-1 and B-2 visitors, individuals admitted under
the VWP cannot extend their stays. Under limited circumstances, USCIS
may grant a 30-day period of "Satisfactory Departure"; otherwise,
an individual must depart the U.S. before the VWP admission period expires.
Other restrictions apply to the VWP, such as waiving the right to contest
any action for removal (deportation), other than on the basis of an application
for asylum. Pursuant to federal regulations, individuals who enter the
U.S. under the VWP shall be removed from the country without referral
to immigration court.
The recent USCIS memo clarifies adjustment of status eligibility for individuals
who entered under the VWP. It has been understood that the law prevents
individuals who entered under the VWP from adjusting status to permanent
resident. There is, however, as the memo highlights, an exception for
immediate relatives. (“Immediate relatives” are defined under
immigration law as spouses of U.S. citizens, children (unmarried and under
21 years of age) of U.S. citizens, and parents of U.S. citizens 21 years
of age or older.) The exception for immediate relatives allows adjustment
of status even after the authorized VWP period has passed.
The USCIS memo also sheds light on the interplay between adjustment of
status and removal proceedings. Although a VWP overstay may not contest
a removal action, even on the basis of a pending application for permanent
resident status, nothing precludes the U.S. Department of Homeland Security
from exercising discretion to (1) decline to pursue removing that individual
and (2) grant an eligible applicant permanent resident status.
While the USCIS memo clarifies adjustment of status eligibility requirements
for immediate relatives who last entered on the VWP, it also makes clear
there are strict procedural and jurisdictional rules that apply to those
who are or may be subject to removal. An immigration attorney experienced
in removal proceedings can help an individual understand and manage those rules.
*If you have questions about the Visa Waiver Program, you should contact
an experienced immigration attorney.
* * *
Temporary Protected Status Sought for the Philippines:
In light of the Typhoon Haiyan disaster, efforts began last week to request
that the U.S. Department of Homeland of Security (DHS) designate the Philippines for
Temporary Protected Status (TPS).
The DHS Secretary (for the moment, Acting Secretary Rand Beers) has the
authority to designate a foreign country for TPS because of conditions
that temporarily prevent the country’s nationals from returning
safely, or in certain circumstances, where the country is unable to handle
the return of its nationals adequately. Once a country is designated for
TPS, U.S. Citizenship and Immigration Services (USCIS) may grant TPS to
its eligible nationals who are in the U.S. Some countries designated for
TPS include Syria, El Salvador, Haiti, and Honduras.
The Secretary may designate a country for TPS based on any of following
temporary country conditions:
- Ongoing armed conflict (such as civil war, e.g., Syria);
- An environmental disaster (such as hurricane or earthquake, e.g., Haiti),
or an epidemic; and
- Other extraordinary and temporary conditions.
During a period in which a country is designated for TPS, individuals granted
TPS, or who are found
prima facie eligible for TPS:
- Are not removable (deportable) from the U.S.;
- Can obtain an employment authorization document (EAD); and
- May be granted travel authorization.
As the name suggests, TPS is a temporary benefit that does not on its own
lead to lawful permanent resident (LPR) status or give any other immigration
status. However, TPS does not prevent an individual from:
- Applying for nonimmigrant status;
- Applying for adjustment of status to LPR based on an immigrant petition; or
- Applying for any other immigration benefit or protection for which she
or he may be eligible.
Last week, Senator Charles Schumer (D-NY), New York Cardinal Timothy Dolan,
and the American Immigration Lawyers Association (AILA) called upon DHS
to extend TPS to the Philippines. According to recent reports, the death
toll is at 4,200. The Philippine government disputes this figure and has
reported 3,637 deaths as of this Saturday, up from 2,360. According to
the Philippine disaster council, 1,186 are still missing.
The Philippine government says 9.8 million have been affected in 44 provinces,
539 municipalities, and 56 cities. Of those affected, 4.9 million are
children; 1.5 million are children under the age of five who are at risk
of Global Acute Malnutrition (GAM). According to U.N. estimates, 2.5 million
people are in need of food assistance.
*If you have questions about Temporary Protected Status or other immigration
benefits, you should contact an experienced immigration attorney.