Case: I-130/I-485
Applicant/Beneficiary – British
Location: Dayton, OH
Our client entered the United States in February 2017 from the United Kingdom under the visa waiver program. As a Visa Waiver Entrant, he was only authorized to remain in the United States only for 90 days. In October 2016, our client and his U.S. citizen girlfriend married in the United States. Our client went back to the United Kingdom and came back to visit his wife in February 2017.
In March 2017, they contacted our office and consulted with us regarding the adjustment of status. After the consultation, they retained our office on March 21, 2017. One main issue in his green card application through marriage was the fact that he came to the United States under the visa waiver program. As our office wrote in our 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.
Since our client resided in Dayton, Ohio, his application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff). However, it was quite foreseeable that the USCIS field office will exercise its discretion to deny his application because of his visa waiver entry.
Nevertheless, our office filed the I-130 Petition and I-485 Adjustment of Status Application on May 2, 2017. Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before his authorized stay period was expired. Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. There was no Request for Evidence. Prior to the interview, we thoroughly prepared via conference call. On September 28, 2017, our client was interviewed at the Cincinnati, Ohio USCIS Field Office. Despite the visa waiver issue, the USCIS officer approved his green card application on the same day of the interview. Now, our client becomes a green card holder.