Green Card Approval Through Marriage Despite Visa Waiver Entry for Italian Client in Cleveland Ohio

Case: I-130/I-485
Issue: Visa Waiver Entry
Applicant/Beneficiary – Italian
Location: Cleveland, Ohio

Our client entered the United States from Italy in January 2012 under the visa waiver program. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days. However, she has remained in the United States ever since.

Our client is a doctor, and she mentioned that she came on a J-1 visa before. So even though old visas and passports were not required, we asked her to show us those, together with her old DS-2019, so that we could check if she was subject to the 2-year foreign residency requirement. Our first inclination was that she was subject, as most J-1 entrants who are physicians are. When we saw the J-1 documents, we found out that she indeed was not subject. And so we proceeded with the adjustment of status case.

She married her U.S. Citizen spouse in September 2011 in Italy and her U.S. citizen husband filed an I-130 petition on October 4, 2011. One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program. As our office wrote in a previous success story with a similar issue, under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability; it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Our office filed the I-485 Adjustment of Status Application on March 5, 2012. Our office requested the CIS to exercise favorable discretion in granting adjustment of status despite her visa waiver entry. Everything went smoothly and the receipt notices, fingerprint appointment, and the work permit all came on time. There was no Request for Evidence. Prior to the interview, we thoroughly prepared our clients. On May 15, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office. We accompanied them at the interview as well. Despite the visa waiver entry and subsequent adjustment of status issue, the USCIS officer approved her green card application on the same day. Now, our client is a green card holder.