USCIS's latest on Visa Waiver Adjustments leaves many questions unanswered.
In the ongoing saga about those seeking adjustment of status as immediate relatives under the visa waiver program, U.S. Citizenship and Immigration Services (USCIS), through the American Immigration Lawyers Association (AILA) [USCIS's peculiar way of announcing policy], on April 7, 2011, announced the following policy advisory:
All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM (Adjudicator's Field Manual) update on this topic we expect to issue soon.
Here is the good, the bad, and the ugly about this announcement (assuming it is authoritative and not something that someone at USCIS gave to AILA without the complete blessing of all the USCIS policy makers and assuming AILA got the answer right and assuming USCIS does not change its mind).
The good is the unequal treatment that is apparent in the San Diego District Office, which routinely denies adjustments of status for visa waiver overstays asserting they are ineligible to adjust status, has ended. USCIS is acknowledging that these type of cases can be adjudicated.
The bad is that the willingness to adjust an alien's status does not extend to visa waiver overstays who Immigration and Customs Enforcement (ICE) has ordered removed before USCIS got to their adjustment application. Successfully adjusting depends on the happenstance of which agency encounters the alien first, or, rather, which agency makes a decision first. Nothing here precludes USCIS from handing a file to ICE before it adjudicates it so ICE can issue a removal order, and then asserting that it now will not adjudicate the adjustment application because there is a removal order.
The ugly is that how to treat visa waiver overstays is clearly a policy issue that involves two agencies, ICE and USCIS. ICE has the authority to order the removal and then remove an alien who has overstayed his or her period of authorized stay on the visa waiver program. USCIS has the authority to adjudicate adjustment of status applications for these people. Instead of a coordinated approach to the policy issues, USCIS has announced its second-fiddle policy, essentially asserting, "We will adjudicate an adjustment of status application only if ICE lets us. If ICE issues a removal order, we will step back, regardless of when ICE issued the removal order." To be clear, all ICE has to do to issue a removal order is make sure the alien is a visa waiver overstay and check a box on a form. (I do not believe the alien even has to be present for an order to be entered or has to be informed of the removal order's being entered, i.e., the box being checked. Thus how does a visa waiver overstay even know if there is a removal order against him or her?) Ever since INS was broken up, the complexities of immigration policy making have been exacerbated by the fact that different agencies with different philosophies, different interests, and different goals, all with a stake in a given policy, must coordinate. Here USCIS announces that ICE has absolute veto power over USCIS's policy of adjudicating visa waiver adjustments for overstays and ICE is silent on its position on the issue.
Without ICE's being integrated into the policy making process it is impossible to know if it is advisable for a visa waiver overstay to file an adjustment of status application. While USCIS may be willing to adjudicate an application (and we still have to see how USCIS finesses the case law problems), its sister agency, ICE, could be taking out the cuffs and fueling up the jet knowing USCIS will not get in the way. Things are a little better, but there is still a lot to learn. Posted April 8, 2011.
Jonathan D. Montag is a State Bar of California certified Immigration and Nationality Law Specialist. He was an AILA San Diego Chapter Chair. Mr Montag has successfully argued cases before the District Court for the Southern District of California and the Ninth Circuit Court of Appeals. He has testified numerous times in the District Court for the Southern District of California and before the State Bar Court as an expert in immigration law. He is currently chairman of the State of California Immigration and Nationality Law Advisory Commission of the Board of Legal Specialization. Mr. Montag was named a 2005 Attorney of the Year by California Lawyer Magazine and has been named to the San Diego Super Lawyers list for immigration in 2007-2011.
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