Beware Of Restrictions On Change Of Status From Visa Waiver

It is a well-known fact that over the past 100 years or so Filipino's have emigrated to a great number of countries throughout the world. I have worked with Filipino's who have citizenship from many countries in Europe including Great Britain, France, Italy and Spain. With foreign travel comes the additional issue of foreign births. Many of our clients who are born in the Philippines have had children in foreign countries such as Britain, France or Italy.

The issue that comes up is that that many persons born in Europe enter the United States using the “Visa Waiver” program in which they simply present their European passport without a visa and are admitted to the United States for 90 days. This form of entry is usually indicated on an I-94 card indicating entry by “WT” or “WB” depending on the purpose of the visit. Entry under the Visa Waiver will result in severe restrictions on your ability to “change status” to legal permanent resident (green card). Presently only an immediate relative spouse parent or child who is a U.S. Citizen is eligible to petition an individual who has overstayed the 90 day period following entry under a visa waiver. There is even one case on the books now that may allow USCIS to further restrict this exception to the 90-day period of lawful admission.

This can also present a problem for a family that is in status, and a parent seeks to change status based on an approved H-1B visa petition but whose child would have to exit the United States and re-enter as an H-4 following consular processing. In many cases it would be prudent to have a foreign born child seek a B-1 tourist visa rather than use the Visa Waiver program. If that person enters as a B-1 tourist they may change status within the 6 month period of authorized status with fewer restrictions, and they would have more options in the event they fail to exit the United States during their period of authorized stay

Another exception available is to persons who qualify under the 245i waiver programs available to persons who are the beneficiaries of an immigrant visa petition or labor certifications filed prior to January 14, 1998, or is the beneficiary of an immigrant visa petition or labor certification filed prior to April 30, 2001 and was present in the United States prior to December 21, 2000.

The other significant disadvantage for a person who enters under the visa waiver program is that they have no access to immigration court except in the case where that person seeks relief through asylum. USCIS has the authority to detain and remove any person who has overstayed a visa waiver petition regardless of whether they have an immigrant visa petition pending.

It is important therefore to consider the nationality and manner of entry of all family members prior to filing immigrant or non-immigrant visas. More importantly it is important to consider the best way to enter the United States as a non-immigrant visa is often preferable to entry under a the visa waiver program.

In addition to the above concerns with regard to Visa waivers travelers should be aware of the new ESTA program (Electronic System for Travel Authorization). This new system require at two year intervals that persons planning to enter the United States using the Visa Waiver program apply for a Travel Authorization immediately through the ESTA (Electronic System for Travel Authorization) website. Since January 12, 2009, a Visa Waiver traveler without an approved Travel Authorization may be denied boarding or entry if attempting to enter the United States under the Visa Waiver Program.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.