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Visa Waiver Program Entrants Can Adjust Status

The Visa Waiver Program allows nationals of certain countries to enter the United States for business or pleasure for a period not exceeding 90 days without first obtaining a visa. Currently, there are 37 countries participating in the Visa Waiver Program. (See Table above.[1]) Previously, a visa waiver entrant was not allowed to adjust status in the United States except on the basis of asylum.[2] (Another exception allowed by several

Federal courts was for persons seeking adjustment as spouses or unmarried minor children of U.S. citizens if the adjustment of status application was filed before the expiration of the authorized 90-day period of stay.)

That changed on November 14, 2013 when the USCIS changed its policy in a Policy Memorandum. The Policy Memorandum allows the adjudication of all adjustment of status applications filed before or after the expiration of the 90-day period of authorized stay as long as the applicant is seeking adjustment of status as a spouse or minor child of a U.S. citizen. This is welcome news for Visa Waiver Program entrants.

The full text of the Policy Memorandum can be found here.

[1] Taiwan, though not in the list, is included as a country. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

[2] Immigration and Nationality Act Sections 217(a)(1) and 217(b)(2).

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