Dangers and Limitations of Entry Under the Visa Waiver Program

By Attorneys Robert L. Reeves and Eric Welsh

Most nonresident aliens desiring to visit the United States on a temporary basis for business or pleasure must first obtain a “B1” or “B2” visa from the U.S. Embassy in the alien’s country of origin.  The alien applying for a “B1/B2” visitor visa is required to demonstrate ties to their home country, and in general, must appear for an interview at the Embassy prior to issuance of the visa.  Perhaps the most notable exception to this process is the “Visa Waiver Program” (VWP), a treaty-based agreement between the United States and certain specified countries that permits visitors from those countries to come to the United States as a visitor without first obtaining a visa. 

Under the VWP, persons from certain specified countries can enter the United States as a visitor for a period not to exceed 90 days with nothing more than a machine-readable passport and a nonrefundable return ticket.  At present, the participating countries are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the U.K.   For persons from the countries specified, the VWP is a fast and easy option for visiting the United States. 

However, there are serious sacrifices that must be made in exchange for the ease and convenience of the VWP.  Most notably, the VWP entrant waives her right to appear before an Immigration Judge if deemed inadmissible, and is not entitled to bond if held in the custody of an immigration official.  For example, if a VWP entrant stays in the United States for more than 90 days and is thereafter arrested by police on a traffic infraction, the VWP entrant may be transferred to the custody of Immigration & Customs Enforcement and may be immediately detained and removed from the United States.  The VWP entrant would not be allowed to “bond out” of detention, and could not apply for relief before an immigration judge, even if the VWP entrant is otherwise a law-abiding person who was built substantial equities in the US (job, family, home).  By contrast, a person who enters the US on a “B2” visitor visa and overstays is permitted to apply for bond if arrested, and has the right to appear before an immigration judge to challenge deportability and request relief (for example, cancellation of removal or adjustment of status based on a family petition).  The only exception for the VWP entrant is a claim of asylum, but even then, the VWP entrant is subject to mandatory detention while her asylum application is decided. 

In addition, the status of the VWP entrant is subject to considerable restrictions.  The 90-day VWP period cannot be extended, and the VWP entrant cannot change status to any other nonimmigrant visa category (e.g., cannot change from VWP to “B2,” or to “F1” student, or “H1B” worker). 

Although the rights waived and other restrictions severely limit the ability of the VWP entrant to remain in the U.S., one doorway may still be open for the VWP entrant to seek permanent relief in the U.S.: a petition from an immediate family member.  The U.S. Citizenship & Immigration Services (USCIS) recently indicated that it would entertain an application for adjustment of status from a VWP applicant, if the basis of adjustment is an immediate relative petition (i.e., petition from a U.S. citizen spouse or over-21-year-old child).  This generous policy of USCIS contrasts the strict holding of many federal circuit courts, which have in the past found that VWP entrants cannot apply for adjustment of status—regardless of whether the petitioner is a U.S. citizen spouse or over-21 child—if the application is made more than 90 days after entry into the United States.  This new policy provides considerable relief to many VWP entrants who remain in the US but have not been arrested or violated any other state or immigration laws. 

Due to the serious restrictions and waivers mandated by the VWP, any person considering entering the US under the VWP is urged to carefully consider alternate options, and to consult with an immigration expert to ensure that VWP entry is the best option.  A VWP entrant who is currently in the US but desires to remain in the United States is urged to consult with an immigration expert to explore any and all options that may be available to legalize his or her status.