PM-602-0093: Adjudication of Adjustment of Status Applications for Individuals Admitted to the
United States Under the Visa Waiver Program
Page 2
asylum.
2
Removal of such an individual “shall be effected without referral of the alien to an
immigration judge for a determination of deportability.”
3
Unlike those who enter the United States in B-1 Temporary Visitor for Business status or as a B-2
Temporary Visitor for Pleasure, individuals admitted under the VWP cannot extend the duration of
their stays. Under limited circumstances, the local USCIS Director may grant a 30-day period of
“Satisfactory Departure”; otherwise, the individual must depart from the United States prior to the
expiration of the VWP admission period.
4
INA section 245(c)(4) renders aliens admitted under the VWP ineligible to adjust status to that of a
person admitted for permanent residence. This provision, however, includes an exception for
immediate relatives of U.S. citizens.
5
Thus, an individual admitted under the VWP who is also an
immediate relative is not precluded from seeking adjustment of status, even after the VWP period
has expired.
U.S. Immigration and Customs Enforcement (ICE) has authority to order the removal of a VWP
overstay, including an immediate relative, under INA section 217(b) and 8 CFR 217.4(b).
Numerous courts of appeals agree that, generally, a VWP overstay may not contest a removal action
on the basis that he or she has filed Form I-485.
6
However, these cases concern only the
individual’s inability to contest removal. They do not address whether the Department of
Homeland Security (DHS) can, as a matter of discretion, decline to seek the individual’s removal
and grant adjustment if the individual is eligible. Nor do these decisions preclude a VWP overstay
who is not subject to a removal order from filing a Form I-485 with USCIS.
Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS discretion. USCIS
exercises this discretion on behalf of DHS.
Policy
USCIS field offices shall adjudicate adjustment of status cases filed by immediate relatives of
U.S. citizens who were last admitted to the United States under the VWP, in accordance with
section 245 of the INA. This includes cases where Form I-485 was filed after the 90-day period of
admission. Adjudication shall occur prior to referral to ICE unless:
• ICE has issued a removal order;
2
INA section 217(b)(2). An application for asylum is also deemed to be an application for withholding of removal
under INA section 241(b)(3). See 8 CFR 1208.3(b).
3
8 CFR 217.4(b).
4
In the event of an emergency that prevents the individual from departing the United States by the 90th day, USCIS
may provide a period of Satisfactory Departure not to exceed 30 days. See 8 CFR 217.3(a).
5
INA section 201(b)(2)(A)(i) defines “immediate relatives” of U.S. citizens and provides that they are not subject to
numerical limitations.
6
See Bradley v. Att’y Gen., 603 F.3d 235 (3rd Cir. 2010); Lang v. Napolitano, 596 F.3d 426 (8th Cir. 2010); Bayo v.
Napolitano, 593 F.3d 495 (7th Cir. 2010); McCarthy v. Mukasey, 555 F.3d 459 (5th Cir. 2009); Momeni v. Chertoff, 521
F.3d 1094 (9th Cir. 2008); Zine v. Mukasey, 517 F.3d 535 (8th Cir. 2008); Lacey v. Gonzales, 499 F.3d 514 (6th Cir.
2007); Ferry v. Gonzales, 457 F.3d 1117 (10th Cir. 2006); Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. 2006); Freeman
v. Gonzales, 444 F.3d 1031 (9th Cir. 2006); see also Nose v. Att’y Gen., 993 F.2d 75 (5th Cir. 1993).