The Consequences of Overstaying the Visa Waiver Program: A Case Study

In this video, attorney Jacob Sapochnick explains the potential problems that may arise when an immigrant who has overstayed the Visa Waiver Program later applies for adjustment of status based on their marriage to a US citizen.

In this case study, we discuss a real situation involving a client who initially came to the United States on the visa waiver program. Per the terms of the Visa Waiver Program, a foreign national may only remain in the United States for a period of 90 days or less.

Our client had remained in the United States unlawfully for a long period of time. During the period of time he remained in the United States unlawfully, he met and married a U.S. Citizen and began a life with his American spouse in the United States. The couple filed an application for adjustment of status after the marriage, thinking that they would be approved without a problem. Unfortunately this application was denied, and a subsequent motion to re-open the case was also denied. In San Diego county and other immigration field offices, immigration officers began to aggressively deny adjustment of status applications for immigrants who had overstayed the visa waiver program, even if the application was based on marriage to a U.S. Citizen spouse. The client then decided to re-file his application for permanent residence after the denial. After filing, the Border Patrol apprehended him and began the process of deporting him from the United States. Understandably this was a very difficult situation for the client and his American spouse to go through. At this point, the client retained our office to begin prosecutorial discretion to cancel his removal from the United States and to re-file his application for adjustment of status to permanent residence, based on his marriage to his American spouse.

The problem in this case was that individuals who travel to the United States on the visa waiver program waive most of the privileges that other visa holders have, such as the right to an immigration hearing. Unfortunately, most individuals who travel on the visa waiver program do not know that they must depart the United States once the 90 days are up, and that if they fail to depart the United States they can be apprehended and deported, without a hearing.

Prosecutorial discretion however is a procedure that allows the immigration officer to cancel the removal proceedings, based on the fact that an immigrant has a pending adjustment of status petition with USCIS, that was filed before detention. Although the client’s immigration officer initially denied cancellation of the removal proceedings, our office was able to advocate for our client by demonstrating that based on the law, USCIS still had jurisdiction over the client, even though he was now in removal proceedings, based on the fact that he had a pending case with USCIS before he was detained and placed in removal proceedings. The supervisor then cancelled the removal proceedings and paroled the client back into the United States. The client was then able to continue his adjustment of status case, and was approved because he had a bona fide marriage.

The important lesson to learn here is that individuals who travel to the United States on the visa waiver program, and who do not depart the United States within 90 days, face removal proceedings, and will not have a legal recourse to remain in the United States in lawful status, unless they have a bona fide marriage with a US citizen, and they applied for adjustment of status before detention. The petition must remain pending with USCIS for prosecutorial discretion to be effective.

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