New York Lawyer's Legal Updates

Can I Adjust My Status After Entering The Country On A Visa Waiver Program?

Author:Green Card Lawyer Alena Shautsova

The rule of thumb for a person trying to adjust their status on a VWP (Visa Waiver Program) will be eligible for adjustment of status based on an immediate relative petition filed within the 90 day preauthorized period of stay. Make sure you are otherwise eligible for an Adjustment of Status.

If you have overstayed your preauthorized stay of 90 days the government has the right to bar your adjustment of status while in the US. The problem with these cases is that if you are to exit the country in the hopes to adjust your status in your home country, or come back under a new VWP you may have unintentionally voluntarily departed from the US and been issued a 3/10 year bar on reentering the country.

*If you already have done this and have an immediate relative willing to sponsor you, you will need to apply for an I-601 Hardship Waiver, this waiver is for applicants outside of the US only.

A common dispute is the ability to adjust status after 90 days if you have not yet been placed in removal proceedings. In previous years the government had denied the adjustment of status filed after the 90 day period, but in light of recent decisions if the overstay is the only issue it can be forgiven, if the applicant has not yet been placed in removal proceedings. For anyone who has overstayed their 90 day period and been placed in removal proceedings there are very few options.

  • Under the VWP an applicant waives their right to defense in removal proceedings before an immigration judge if inadmissible or deportable except in the case of Seeking Asylum in the US.
  • If you are a VAWA self-petitioner that entered under the VWP you may be subject to a bar on adjustment of status, consult with an attorney to see if you are eligible for a waiver.

*Please note, this article was written for Visa Waiver Program entrants. For entrants such as the North American Free Trade Agreement (Canadians and Mexicans) or Visa-Exempt Persons (Canada, Mexico and Bermuda) some of the information provided may not apply. We recommend that you consult with an experienced attorney to discuss eligibility of adjustment of status and the process required to successfully adjust your status.

18 November 2014
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