On November 14, 2013, after much controversy in the past years, the USCIS has finally clarified in its Policy Memorandum (PM-602-0093) that certain individuals who entered the U.S. pursuant to the Visa Waiver Program (VWP) may apply for Adjustment of Status in the United States, including those who violated their 90-day term of stay.

VWP authorizes the nationals of designated countries to enter the US as visitors without a visa for a period of up to 90 days, provided they meet specific requirements for the program. [See the U.S. Department of State's website for more information on VWP.]

As a condition of entry, VWP entrants are not permitted to change to a different visa status, apply for permanent residency (i.e. a "green card"), and waive the right to contest any action for removal.  An exception to the prohibition against applying for permanent residency for parents, spouses, or unmarried children under the age of 21 sponsored by a U.S. citizen (i.e. immediate relatives).  In recent years, controversy arose where qualifying VWP immediate relatives filed applications after the expiration of their authorized 90-day period.  Because a VWP overstay can be ordered removed (under INA section 217(b) and 8 CFR 217.4(b)) , numerous courts of appeals agree that, generally, a VWP overstay may not contest such a removal action on the basis that he or she has filed for permanent residency.  As a result, immediate relative VWP overstays who applied for permanent residency were routinely being denied and removed from the U.S. in some jurisdictions, but not in others.

In the newly published policy memorandum, USCIS directs that it will adjudicate immediate relative applications filed by VWP entrants, including overstays.  Adjudication is to occur prior to referral to ICE unless: (1) ICE has issued a removal order [If subject to a removal order, USCIS should deny the Form I-485 as a matter of discretion; ICE withdraws or rescinds the removal order, USCIS can then approve the application as appropriate.], (2) The adjustment applicant is under investigation for, has been arrested for (without disposition), or has been convicted of an egregious public safety offense (see USCIS Policy Memo 602-0050), or (3) There are fraud and/or national security issues that require resolution.  Applicants must meet all other requirements for the benefit sought before being able to be granted permanent residency.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.