The Visa Waiver Program (VW) allows citizens of certain countries to travel to the U.S. without a visa for stays of 90 days or less. The travel to the U.S. must be for tourism or business in the same way that a B1/B2 visa allows only tourism and certain business. Travelers must also have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel. It’s not too difficult to enter on the VW program but problems may certainly arise for those individuals who overstay their 90 days.
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Unless you are the “immediate relative” of a U.S. citizen, you cannot apply for lawful permanent residence status (LPR) in the U.S. if you entered on the VW program. Immediate Relatives are the spouses, parents, or minor children of U.S. citizens. Anyone else is out of luck and needs to apply for LPR status outside of the U.S.
Many people are under the false impression that simply marrying a U.S. citizen or having a U.S. citizen relative is enough to be permitted to live permanently in the U.S. They mistakenly believe that getting a marriage license is essentially the only requirement to obtain LPR status. This is certainly not true and there are special considerations for individuals who entered through VW program need to keep in mind.
The most important consideration is that if you file your application after the 90 day period of admission has passed or will soon pass, you are technically “removable.” Being removable means that Immigration & Customs Enforcement (ICE) is allowed to deport you immediately. Thus, you do not want to submit an application unless you are sure you meet all the eligibility requirements for LPR status.
Another consideration is that if U.S. Citizenship & Immigration Services (USCIS) denies the application, there is no appeal of the denial (unless you are in the jurisdiction of the Ninth Circuit Court of Appeals which Missouri and Illinois are not).
Moreover, USCIS may not approve your application if ICE has become of aware of the fact that you overstayed and has issued a removal order, you present serious public safety issues, or there is a suspicion of fraud in the application.
Getting an extension of your 90 days is incredibly difficult. The law does not allow extensions except under limited circumstances in which you may be given an additional 30 day period to depart. These limited circumstances are reserved for circumstances in which someone is prevented from departing the U.S. before the 90th day. For example, a medical emergency may prevent someone from flying or boarding a plane. Our office can assist in seeking to obtain these extensions as they require communication with the local U.S. Customs & Border Patrol office (not USCIS which handles regular extensions of stay).
Some individuals think that a short trip to Mexico or Canada or nearby Islands can serve to “restart” the 90 day clock. This is not always the cases as an individual will usually be readmitted to the United States under the original 90 days given when they first arrived.
One thing to consider if you know or think you need more than 90 days is that if you are eligible to travel on the VWP, you may still apply for a visitor (B) visa which can permit stays of up to six (6) months in the U.S. at a time.
Unfortunately, when Immigration & Customs Enforcement (ICE) becomes aware of someone overstaying their 90 day allotment, things move very fast. One of the trade-offs that an individual makes when they enter on the VW program is that they waive their right to contest any action for removal unless it’s to apply for asylum. Thus, you have no hearing in front of a judge. Instead, you are usually taken into custody and the ICE can permit you to purchase your own plane ticket back to your home country or you are kept in custody and they buy your flight for you. Either way, it’s an unhappy return for most folks.