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Visa Waiver Program and Gaining Permanent Residency (Green Card)

As an Immigration Attorney, I deal regularly with the unique issues that Visa Waiver entrants face. The Visa Waiver Program allows nationals of certain designated countries the ability to enter the United States solely with the use of a valid passport. The program allows convenient, visa-free travel. This is a huge advantage as getting a visa can be time consuming and expensive.

The U.S. Department of Homeland Security typically designates countries for the Visa Waiver Program and thus far has designated the following countries:

Andorra, Hungary, New Zealand, Australia, Iceland, Norway, Austria,Ireland, Portugal, Belgium, Italy, San Marino, Brunei, Japan, Singapore, Czech Republic, Latvia, Slovakia, Denmark, Liechtenstein, Slovenia, Estonia, Lithuania, South Korea, Finland, Luxembourg, Spain, France, Malta, Sweden, Germany, Monaco, Switzerland, Greece, The Netherlands, and The United Kingdom.

Although the Visa Waiver Program (VWP) is a program that makes travel to the U.S. convenient and hassle-free, it does create some additional complications when the VWP visitor decides to stay in the United States longer than the 90-day period. VWP visitors cannot get an extension of stay, but they can however, adjust their status based on an immediate relative petition (like marriage to a U.S. Citizen, which would be marriage-based adjustment of status). Adjustment of Status is available to both Visa Waiver individuals who enter the United States and then marry within the United States and to Visa Waiver individuals who are already married to a U.S. citizen and then enter the United States using the Visa Waiver Program. However (and very important to know), people who are already married and enter the United States using the Visa Waiver Program may run into some serious problems when they try to adjust status within the U.S. — those problems have a lot to do with preconceived intent and fraud. If this is your situation, you should have a consultation with an immigration lawyer before filing anything with immigration.

What is important to understand is that when entering the U.S. on visa waiver, you are also entering into a sort of contract, where you are waiving most of the rights afforded to other entrants into the United States.

If you entered under the Visa Waiver Program, in order to preserve more of your rights and minimize risks, it is advisable to marry and file for adjustment of status within the 90-day authorized period of stay. However, this is not always possible and the The U.S. Citizenship and Immigration Services (USCIS) has confirmed that Visa Waiver Overstays with immediate relative petitions may apply for Green Cards within the U.S. and USCIS has discretion to approve them. When filing within the 90-day period of authorized stay, the Visa Waiver Applicant remains eligible to have his or her application reviewed before an Immigration Judge if faced with removal proceedings. Those outside of the 90-day period do not have that right nor do they have the right to file for adjustment during removal proceedings.

In conclusion, although it is more risky to file for permanent residency (green card) while in Visa Waiver Status, especially after the 90-day period, an immigration lawyer can still help the Visa Waiver Applicant to pursue permanent residency based on an immediate relative petition. Depending on how long you have overstayed, getting a green card within the United States may be your best option, especially if your overstay is 180 days or more.

If you are a Visa Waiver applicant seeking to become a permanent resident of the United States, you should consult with an experienced immigration attorney before filing your case. It is of critical importance that your case be analyzed in detail before submitting to immigration. At The Lyttle Law Firm, PLLC we have extensive experience in handling these type of cases and we can help you resolve your immigration issues quickly and affordably. Call us for a consultation at (512) 329-2770.

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