• Ryan Driscoll

I entered the U.S. through the Visa Waiver Program...can I apply for a green card?

The short answer is that you can ONLY apply for a green card if you are an immediate relative of a U.S. Citizen. See INA § 245(c(4); 8 U.S.C. § 1255(c)(4). An immediate relative is defined as the spouse or parent of a U.S. citizen, or an unmarried child (who is under 21 years old) of a United States Citizen.

A strategy that can be used to remove the long separation periods typically experienced during Consular Processing, is for the immediate relative of the US Citizen to enter the US under the Visa Waiver Program, and then apply for adjustment of status (green card), within the first 90 days of entry. The Visa Waiver Program - as of March 2021 - includes 39 nations.

This option only exists if you are from a nation that is part of the visa waiver program, and only if you are an immediate relative of a US Citizen. And, it should also be noted, that the applicant cannot work in the United States until USCIS grants the Employment Authorization Card or Green Card, and the applicant cannot travel outside the US until the adjustment of status is granted. Otherwise, the applicant will have abandoned their application.

It is important to note that your application for adjustment of status becomes less certain of approval if you apply after the 90 days of authorized stay has expired. Notice I did not say it is impossible. Many courts - including the 3rd Circuit - have ruled the applicant is barred from adjustment of status, even for immediate relatives, if adjustment is filed after 90 days. See Bradley v Att’y, 603 F.3d 235 (3rd. Cir 2010).

However, if you file an adjustment of status application after the 90 days has expired, your application would be relying on a 2013 Policy Memo from USCIS that says, as a matter of policy, USCIS will allow immediate relatives to adjust status, even if they are out of status, assuming they are otherwise eligible. To be otherwise eligible, the applicant must not be subject to a removal order, under investigation for or been arrested for or convicted of a public safety offense described in the policy memo.

If you have entered the U.S. under the Visa Waiver Program, and can prove a relationship with an immediate relative, please contact our office to discuss available options of applying for a green card.