Visa Waiver Program and Adjustment of Status

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The U.S. Visa Waiver Program (VWP) is a popular immigration option for travelers from certain countries, allowing them to enter the United States without obtaining a visa for short stays. While the program offers convenience for tourism or business purposes, there are some complexities when it comes to changing one’s immigration status while in the U.S. on a VWP. One such change is the Adjustment of Status, which allows foreign nationals to transition to permanent resident status (green card holders) while staying in the U.S.

In this article, we will explore how the Visa Waiver Program and Adjustment of Status are linked, what the process entails, who qualifies for this change, and important things to keep in mind if you’re considering adjusting your status after entering the U.S. under the VWP.

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

The U.S. Visa Waiver Program enables nationals of participating countries to travel to the U.S. for tourism or business purposes without needing to obtain a visa. Under the program, travelers can stay for up to 90 days without the need to apply for a visa, provided they obtain approval through the Electronic System for Travel Authorization (ESTA).

The program makes it easier for travelers to visit the U.S. for short-term stays. However, because the VWP is specifically for short stays, the ability to adjust or change one’s status is typically more restricted compared to individuals who enter the U.S. on traditional visa categories.

What is Adjustment of Status?

Adjustment of Status (AOS) is a process that allows eligible individuals to change their immigration status to that of a lawful permanent resident (green card holder) without having to leave the United States. This process is ideal for those who want to stay in the U.S. while their green card application is pending.

Unlike consular processing, which requires applicants to apply for a green card at a U.S. embassy or consulate abroad, Adjustment of Status can be completed within the U.S. This process is primarily used by individuals who entered on a visa or a visa waiver and are now eligible to apply for permanent residence through family sponsorship, employment opportunities, or other qualifying reasons.

Can You Apply for Adjustment of Status Under the Visa Waiver Program?

The Visa Waiver Program provides a pathway for short-term visits, but it doesn’t automatically allow individuals to apply for Adjustment of Status. However, there are specific circumstances under which someone who entered the U.S. on a Visa Waiver may be able to adjust their status. Let's explore these details:

Start your application process today and apply for your visa online quickly and easily.

1. Adjustment of Status for Immediate Relatives of U.S. Citizens

One of the most common ways to adjust status while in the U.S. on a VWP is through marriage to a U.S. citizen. If you entered the U.S. under the VWP and later married a U.S. citizen, you may be eligible to apply for Adjustment of Status. Immediate relatives of U.S. citizens (spouses, parents, and unmarried children under 21) have a clear path to a green card.

However, it's important to note that if you are in the U.S. on the VWP and apply for Adjustment of Status before your 90 days are up, it could be questioned whether you entered the country with the intent to apply for permanent residency. If USCIS suspects that you entered the U.S. with the intention to adjust your status, it could complicate your application.

2. Employment-Based Adjustment of Status

In some cases, individuals who enter the U.S. under the Visa Waiver Program may transition to a different immigration status through employment. For instance, if you are sponsored by an employer for a work visa, such as the H-1B, you may be able to change your status while staying in the U.S.

However, the timing of the application is critical. If you entered the U.S. under the VWP and then receive an offer of employment, you may need to show that you did not enter the U.S. with the intention of applying for a work visa or adjusting status. The process can be complex and requires legal guidance.

3. Family-Based Sponsorship for Adjustment of Status

If you are a relative of a lawful permanent resident or U.S. citizen and wish to apply for Adjustment of Status, you can do so while in the U.S. under the VWP. Again, this is usually applicable to immediate family members, such as spouses, parents, or children. However, if you are applying for a family-based green card and you entered on the VWP, you must be careful not to violate the 90-day rule.

4. Traveling on the VWP and Adjustment of Status

The U.S. government expects visitors entering the U.S. under the Visa Waiver Program to leave before their 90 days are up. Applying for Adjustment of Status while still within the 90-day window could trigger issues, as USCIS may view this as evidence that you misrepresented your intent when entering the country.

For those wishing to adjust their status, it’s often advisable to wait until the 90-day limit has passed, although there are exceptions. USCIS also allows individuals to adjust status if they are in valid nonimmigrant status and have a petition approved by USCIS.

Start your application process today and apply for your visa online quickly and easily.

5. The 90-Day Rule

The 90-day rule is one of the key concerns when applying for Adjustment of Status under the VWP. This rule mandates that travelers entering the U.S. under the Visa Waiver Program must leave the country within 90 days. If you apply for Adjustment of Status within this time frame, USCIS may believe that you entered the U.S. with the intent to adjust your status, which could complicate or even jeopardize your application.

It’s essential to wait until after the 90-day period has passed or ensure that your intent when entering the U.S. aligns with your reason for seeking Adjustment of Status. If you can prove that your intent was initially to stay temporarily and the decision to adjust your status came after your entry, you may have a better chance of success.

Important Considerations Before Applying for Adjustment of Status

While adjusting your status after entering the U.S. on the VWP is possible, it’s not a straightforward process. Here are a few things to keep in mind:

  1. Consult an Immigration Lawyer: It’s highly recommended that you speak with an immigration lawyer before attempting to apply for Adjustment of Status. A lawyer can help you navigate the complex rules, including the 90-day rule and other restrictions.

  2. Maintain Your Status: While applying for Adjustment of Status, ensure you do not violate any U.S. immigration laws, including overstaying your VWP period or engaging in activities that could jeopardize your application.

  3. Prepare Complete Documentation: The adjustment process involves submitting numerous forms and documentation, including medical exams, proof of eligibility, and evidence of relationships or employment. Ensure you have all necessary paperwork in order before submitting your application.

    Start your application process today and apply for your visa online quickly and easily.

  4. Be Aware of Potential Denials: If USCIS believes that you entered the U.S. with the intent to adjust your status and violated the rules of the Visa Waiver Program, your application for Adjustment of Status may be denied.

Final Thoughts on the Visa Waiver Program and Adjustment of Status

The Visa Waiver Program is an excellent option for travelers who wish to visit the U.S. temporarily for tourism or business purposes. However, for those wishing to transition to permanent residency through Adjustment of Status, there are important restrictions and challenges to consider.

Understanding the complex rules surrounding the Visa Waiver Program and the Adjustment of Status process is crucial for making informed decisions about your immigration journey. If you are considering applying for Adjustment of Status, it’s important to seek professional legal advice to ensure a smooth and successful transition to permanent residency.

Apply for Your ESTA Today

If you are eligible for the U.S. Visa Waiver Program and are planning to visit the U.S., don’t wait! CLICK HERE to begin your ESTA application now and ensure a smooth journey to the United States.

Easily apply for your eVisa online by visiting Tourist Requirements.

Start your application process today and apply for your visa online quickly and easily.

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