Visa Waiver Program and Adjustment of Status

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The U.S. Visa Waiver Program (VWP) allows citizens of certain countries to travel to the United States for tourism or business purposes without needing a visa. Instead, they must apply for authorization through the Electronic System for Travel Authorization (ESTA). The program is designed to facilitate short-term visits, but what happens if you wish to change your status during or after your stay in the U.S. under the VWP? This is where the concept of "Adjustment of Status" comes into play. In this detailed guide, we will discuss the relationship between the Visa Waiver Program and Adjustment of Status, including what you need to know, eligibility criteria, and important considerations.

What is the U.S. Visa Waiver Program (VWP)?

The U.S. Visa Waiver Program is a federal initiative that allows citizens of certain countries to enter the U.S. without obtaining a visa, provided they meet specific requirements. The program is meant for short visits, typically for tourism, business, or transit purposes, and allows stays of up to 90 days. It is an excellent option for eligible travelers who want to avoid the visa application process.

However, when individuals enter the U.S. on a VWP, their purpose is generally restricted to short stays. If a person in the U.S. on a VWP wishes to extend their stay, change their visa status, or apply for permanent residency (a green card), the process is not as simple as just applying for an extension. In these cases, "Adjustment of Status" may be an option.

What is Adjustment of Status?

Adjustment of Status (AOS) refers to the process of changing your immigration status while remaining inside the U.S. It is often used by individuals who entered the U.S. on a temporary visa or through the Visa Waiver Program and later decide they want to stay permanently by becoming a lawful permanent resident (green card holder).

Adjustment of Status allows individuals to apply for a green card without having to leave the U.S. This process is available to those who meet certain eligibility criteria, such as being an immediate relative of a U.S. citizen or having an approved employment-based or family-based immigration petition.

How Does the Visa Waiver Program Relate to Adjustment of Status?

While the U.S. Visa Waiver Program allows travelers to enter the U.S. without a visa, it also comes with certain restrictions that impact the possibility of applying for an Adjustment of Status while inside the country. Below, we explore the key points of the relationship between the Visa Waiver Program and Adjustment of Status:

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1. VWP Restrictions on Changing Status

One of the primary limitations of the Visa Waiver Program is that individuals who enter the U.S. under the VWP are generally not allowed to change their status or apply for an extension. The intent behind the VWP is for travelers to come for a temporary stay, typically for tourism or business, and then depart the U.S. before the 90-day period expires.

As a result, most individuals entering on the VWP cannot directly apply for a change of status or Adjustment of Status while in the U.S. This limitation is part of the U.S. immigration policy to ensure that the VWP is used only for short visits.

2. Changing Status from VWP to Another Visa Category

Although individuals who enter on a VWP cannot change their status under normal circumstances, there are some exceptions. In certain cases, travelers may be able to apply for a change of status if they meet specific conditions.

For example, a person entering the U.S. on a VWP may be eligible to apply for a change to a different nonimmigrant visa status, such as an H-1B or F-1 student visa, if they can prove that their initial entry was not for the purpose of adjusting status. However, this requires filing a petition with U.S. Citizenship and Immigration Services (USCIS), and approval is not guaranteed.

3. Adjustment of Status for Immediate Relatives

If you are in the U.S. on a Visa Waiver and are married to a U.S. citizen or are an immediate relative of a U.S. citizen, you may be eligible to adjust your status under certain conditions. Immediate relatives of U.S. citizens are eligible to apply for Adjustment of Status, even if they entered the U.S. under the Visa Waiver Program.

However, it is important to note that the adjustment process for those in the U.S. under the VWP may be more complicated, and specific rules apply. You must demonstrate that you were not attempting to circumvent immigration laws when you entered the U.S. and that your intent was consistent with the original purpose of your trip.

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4. Entering the U.S. with a Non-VWP Visa

To avoid complications with Adjustment of Status, it may be better to enter the U.S. on a non-VWP visa if you have future plans to adjust your status. Non-VWP visas, such as tourist visas (B-2), student visas (F-1), or employment-based visas (H-1B), allow for more flexibility when it comes to applying for a change of status or adjustment to permanent residency.

5. The 90-Day Rule and Timing of Adjustment

Another critical issue when considering an adjustment of status under the VWP is the 90-day rule. U.S. immigration law specifies that if you enter the U.S. on a VWP, you are expected to leave within 90 days. If you apply for Adjustment of Status during this period, it can raise questions about your initial intent. If USCIS believes that you entered the U.S. under the VWP with the intention of staying permanently, this could be considered a violation of immigration law.

To avoid this issue, it’s recommended that you apply for a change of status or adjustment of status only after staying in the U.S. for more than 90 days or if you are already eligible based on a family or employment relationship.

Common Scenarios for Adjustment of Status After VWP Entry

Here are some common situations in which individuals might seek Adjustment of Status after entering the U.S. under the Visa Waiver Program:

  1. Marriage to a U.S. Citizen: If you enter the U.S. on the Visa Waiver Program and later marry a U.S. citizen, you may be eligible for Adjustment of Status based on your marriage.
  2. Employment-Based Immigration: If you have a job offer from a U.S. employer and can secure an employment-based visa after entering under the VWP, you may be eligible for a change of status.
  3. Family-Based Sponsorship: If you have a close relative who is a U.S. citizen or lawful permanent resident, they may be able to sponsor you for permanent residency, allowing you to apply for Adjustment of Status.

Key Considerations for Adjustment of Status Under the VWP

While it is possible to apply for Adjustment of Status after entering the U.S. under the Visa Waiver Program, you should consider the following:

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  • Consult an Immigration Lawyer: Due to the complexities of changing status while in the U.S. under the VWP, it’s highly advisable to consult with an immigration attorney who can guide you through the process and ensure you are not violating immigration laws.
  • Be Aware of the 90-Day Limit: Applying for Adjustment of Status within the 90-day period could raise issues regarding your intent when entering the U.S. Always keep this time frame in mind when planning your application.
  • Provide Strong Documentation: When applying for Adjustment of Status, ensure that you provide complete and accurate documentation to support your application. This includes proof of eligibility, financial support, and any necessary forms.

Final Thoughts on the U.S. Visa Waiver Program and Adjustment of Status

The U.S. Visa Waiver Program offers an excellent option for travelers wishing to visit the U.S. for short stays. However, if you intend to adjust your status and remain in the U.S. permanently, it’s essential to understand the limitations and regulations associated with the VWP. While applying for Adjustment of Status after entering under the VWP is possible, the process is often more complex and requires careful planning and legal advice.

If you plan to adjust your status or change your visa type, make sure to follow the rules, avoid overstay issues, and be prepared for the necessary paperwork. By understanding the relationship between the Visa Waiver Program and Adjustment of Status, you can make informed decisions about your U.S. immigration journey.

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