We have been following the Visa Waiver Adjustments crisis since it started in July 2010. In a recent meeting between local AILA lawyers and the USCIS San Diego office the following question was raised by the local AILA lawyers:
USCIS Headquarters meeting on April7,2011 relating to adjustment following a Visa Waiver Overstay, AILA minutes distributed indicating " AILA requests that USCIS immediately issue guidance to the field clarifying that an alien admitted under the Visa Waiver program may adjust status as an immediate relative notwithstanding the filing of form I-485 after the expiration of the Visa Waiver period of admission.
USCIS National Response: All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the US under the visa waiver program and overstayed on their merits, UNLESS, the potential beneficiary is the subject of INA section 217 removal (deportation) order. Additionally filed office have been instructed to hold in abeyance all visa waiver adjustment applications for potential beneficiaries who have been ordered removed under section 217 INA. We are drafting final guidance including an AFM (Adjudicator Field Manual) update on this topic we expect to issue soon."
San Diego Office Response:
The San Diego office has followed up with its own emails on this subject with USCIS HQ, and was advised that when there is a visa waiver overstay they should consider the totality of the circumstances and adjudicate "on the merits". A section 217 violation is an ICE issue that can not be ignored. (AILA lawyers argued that section 217 overstay is not more serious than any other 214 Tourist visa overstay which is excused for immediate relatives; but the San Diego office District 24, belives they need to be distinguished because of the contract the immigrant signs when coming on the visa waiver. The San Diego office would like to see a good reason for the overstay to favorably adjudicate an I-485 on the merits in the exercise of discretion. We are looking forward to more specific guidance.
So there you have it, The San Diego Immigration office finally shows some flexibility and will start approving cases that can show a good reason for an overstay. What such reasons may be, we will update you shortly. Overall this is a positive shift in policy and we hope to report more good news soon. We still suggest to Visa Waiver overstay clients to be careful when filing for adjustment of status, and consult an experienced lawyer before filing the case.
Jacob J. Sapochnick is the managing attorney of The Law Offices of Jacob J. Sapochnick and is an active member of the American Immigration Lawyers Association; he has been invited to lecture on immigration law topics at various conferences in the United States and abroad. He has also published several articles on issues related to the field. Mr. Sapochnick, Esq. provides immigration law support to US Immigration clients worldwide. This includes assisting individuals and companies applying for Visas to work and live in the United States, Canada and Mexico. Mr. Sapochnick graduated from Manchester Metropolitan University, School of Law with a Bachelor of Law (Hons.) Degree. He also attended California Western School of Law in San Diego, CA and obtained his LL.M (Masters) degree in international and comparative law. Thereafter, he pursued his career, focusing on US business immigration law. Mr. Sapochnick assists foreign workers to live and work in the United States by understanding their situation, goals and objectives he obtains the appropriate work and investment visas. His clients range from multi-national companies to mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.