Visa Waiver Program and Change of Status

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The U.S. Visa Waiver Program (VWP) is a popular immigration option for nationals of certain countries who wish to visit the United States for tourism or business purposes. This program allows travelers to enter the U.S. without obtaining a visa, for up to 90 days. However, many individuals who enter the U.S. on the Visa Waiver Program may later wish to change their immigration status. This can be a complex process and requires careful consideration of the rules and regulations governing the VWP and change of status procedures.

In this article, we will explore the relationship between the Visa Waiver Program and the change of status process, including the conditions under which a change of status might be possible, the risks involved, and important considerations when navigating this process.

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

The Visa Waiver Program (VWP) allows citizens of designated countries to enter the U.S. for tourism, business, or transit purposes without having to apply for a visa. Travelers entering under the VWP must obtain authorization through the Electronic System for Travel Authorization (ESTA) before they board their flight.

While the VWP streamlines entry into the U.S., it is intended for short stays (up to 90 days). Travelers entering the U.S. on the VWP are typically not allowed to change their status or extend their stay unless certain conditions are met. The goal of the program is to allow for short-term visits without the need for a lengthy visa application process.

What is Change of Status?

A Change of Status (COS) is the process through which a foreign national legally in the U.S. changes their immigration status without leaving the country. This could mean changing from a visitor to a student, from a tourist to an employee, or from a temporary visitor to a permanent resident.

Typically, the change of status process involves filing an application with U.S. Citizenship and Immigration Services (USCIS), along with any supporting documentation required for the new status. If approved, the applicant's status is updated accordingly, and they are allowed to stay in the U.S. under the new classification.

Can You Change Your Status While in the U.S. on the Visa Waiver Program?

The ability to change status while in the U.S. on the Visa Waiver Program depends on several factors. The VWP is generally intended for temporary visitors, and there are limitations to making a change of status once you've entered the country under this program. While changing status from a Visa Waiver Program entry is not impossible, it’s a complicated and risky process.

1. The 90-Day Rule:

One of the most important rules for those entering the U.S. under the Visa Waiver Program is the 90-day rule. Travelers under the VWP are allowed to stay for up to 90 days, but they are expected to leave the U.S. at the end of that period. If you decide to apply for a change of status while within this 90-day period, it could raise questions about whether you entered the country with the intention to stay beyond 90 days, which could lead to complications.

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

To avoid this, it’s advisable to wait until after the 90-day period has passed before applying for a change of status. However, there are exceptions, and the circumstances of your stay may determine whether your change of status application is accepted.

2. No Preconceived Intent to Immigrate:

A critical aspect of the change of status process under the VWP is the issue of intent. When entering the U.S. under the VWP, you must have the intent to stay temporarily. If you arrive in the U.S. and then attempt to change your status shortly after your arrival, USCIS may suspect that you misrepresented your intent at the time of entry. This could result in your application for change of status being denied or lead to other complications with your immigration history.

In some cases, if USCIS believes that you entered with the intent to adjust your status (e.g., to obtain a work visa or permanent residency), they may deny your application. It’s important to demonstrate that your original intent was indeed temporary and that the decision to change your status arose during your stay.

3. Who Can Change Status After Entering Under the VWP?

Not all individuals who enter under the Visa Waiver Program are eligible to change their status. Generally, immediate family members of U.S. citizens or lawful permanent residents (such as spouses, parents, or children) may be eligible for a change of status. Employment-based status changes are also possible for certain individuals. However, these changes are subject to several restrictions, and you must ensure you meet the necessary criteria.

The most common scenarios where people on the Visa Waiver Program can apply for change of status include:

  • Marriage to a U.S. citizen or lawful permanent resident: If you marry a U.S. citizen, you can apply for a change of status to become a permanent resident. However, USCIS will scrutinize your intent when you entered the U.S. under the VWP to ensure you didn’t enter with the intent to marry and adjust your status immediately.

  • Employment-Based Status Change: If you secure employment with a U.S. employer who is willing to sponsor you for a work visa (such as an H-1B visa), you may be eligible to change your status from a visitor to a worker. However, you need to ensure that your entry under the VWP was not with the intent to work.

  • Other Family-Based Categories: Immediate relatives of U.S. citizens or lawful permanent residents who enter on the VWP may be eligible to apply for a change of status to permanent residency. Again, this depends on the nature of your entry and the circumstances surrounding your status change request.

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

4. Risks and Challenges

While changing status under the VWP is possible, it is important to be aware of the risks and challenges involved:

  • Intent Issues: USCIS may challenge your application if it believes you misrepresented your intent when entering the U.S. on the VWP.

  • Overstaying: If you overstay your 90-day period under the VWP, this can have serious consequences for your future immigration status. It could make you ineligible for a change of status and may result in you being barred from re-entering the U.S. for several years.

  • Complex Documentation: The change of status application process often requires a substantial amount of documentation. You must provide proof of eligibility for the new status and meet all requirements to ensure your application is processed successfully.

Important Considerations Before Applying for a Change of Status

If you're considering applying for a change of status while in the U.S. under the Visa Waiver Program, here are some key factors to keep in mind:

  1. Consult an Immigration Attorney: Due to the complexities of changing status under the VWP, it is highly recommended to seek professional advice. An immigration lawyer can guide you through the process and help you avoid mistakes that could jeopardize your application.

  2. Be Honest About Your Intentions: Make sure that your actions and applications align with your initial intent when entering the U.S. under the VWP. If you intended to stay only temporarily, changing status may be possible. However, if your intent was always to immigrate, this could complicate your case.

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

  3. Don’t Overstay Your Authorized Stay: Always make sure you leave the U.S. within the 90-day period unless your change of status application is in progress. Overstaying could harm your immigration record and future applications.

  4. Prepare the Necessary Documents: Ensure that you have all required documentation for your change of status application, including proof of your eligibility for the new status, your current U.S. immigration status, and other supporting materials.

Final Thoughts on the Visa Waiver Program and Change of Status

While the U.S. Visa Waiver Program offers a streamlined way for travelers to enter the U.S. without a visa, transitioning to a different status while in the U.S. on the VWP can be complex. It’s possible to apply for a change of status, but it’s essential to understand the potential challenges, especially regarding intent and the 90-day limit.

If you’re considering applying for a change of status while in the U.S. on the Visa Waiver Program, it’s crucial to consult with an immigration attorney to ensure you follow the correct process and avoid any missteps. By doing so, you can improve your chances of successfully changing your status and achieving your immigration goals.

Apply for Your ESTA Today

If you're eligible for the Visa Waiver Program and planning to visit the U.S., be sure to apply for your ESTA approval in advance. CLICK HERE to begin your ESTA application today!

Easily apply for your eVisa online by visiting Tourist Requirements.

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