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Carlos Batara - Immigration Attorney

ICE Cold Heart: The Danger Of Love Under The Visa Waiver Program

– Posted in: Permanent Residence And Green Cards

Love happens.

More often than not, love happens unexpectedly.

For immigrants who have entered the U.S. under the Visa Waiver Program, love can lead to deportation – and a ten year to permanent separation from their spouse and children.

Despite years of battling this issue as a green card attorney, I’m still saddened every time government agents fail to grasp love and marriage deserve a second look before family ties are destroyed and immigrants are blindly sent back to their country of origin.

Policy makers, it seems, should grasp that love can happen, instantly, and innocently, even for tourists.

What Is The Visa Waiver Program?

The Visa Waiver Program (VWP) was created in 1986 to facilitate easier travel to and tourism in the United States by individuals from friendly nations. Countries with a history of high illegal entry into the U.S. are excluded.

The program is relatively simple. It allows citizens of certain countries to travel to the U.S. for up to 90 days without obtaining a visa.

To ensure visitors are not security risks, each immigrant must submit information into the Electronic System for Travel Authorization (ESTA) online portal. Once approved, a traveler is pre-approved for visa-free travel for two years.

Membership in the program is not automatic.

Currently, nations seeking membership in the VWP must meet a number of security and travel-related requirements in order to be considered for admittance.

What Countries Are Approved For The Visa Waiver Program?

At present, there are 38 countries approved for the Visa Waiver Program.
(NOTE: Information Updated June 2019.)

  • Andorra
  • Australia
  • Austria
  • Belgium
  • Brunei
  • Chile
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Germany
  • Greece
  • Hungary
  • Iceland
  • Ireland
  • Italy
  • Japan
  • Latvia
  • Liechtenstein
  • Lithuania
  • Luxembourg
  • Malta
  • Monaco
  • The Netherlands
  • New Zealand
  • Norway
  • Portugal
  • San Marino
  • Singapore
  • Slovakia
  • Slovenia
  • South Korea
  • Spain
  • Sweden
  • Switzerland
  • Taiwan
  • United Kingdom

Visa Waiver Program Limits

In exchange for the relatively simple entry, visiting immigrants from VWP nations must waive many rights given to entrants under other visa categories. For instance, VWP immigrants cannot extend their stay in the U.S. or change their status to another category.

Moreover, they cannot seek adjustment of status to permanent residence – unless he or she is the spouse, child under 21, or parent of a U.S. citizen.

Even this provision is limited.

If the family-based petition is filed within the 90 days authorized under the VWP, an immigrant is allowed to have his case reviewed by an immigration judge when the government seeks to deport him.

After 90 days, the VWP entrant is not entitled to an immigration court hearing or to having his application reviewed by an immigration judge.

Having practiced deportation defense for nearly two decades, this 90-day policy has never made sense to me.

Attraction may convert to love in 90 days, but asking attraction to convert to love and marriage in 90 days does not reflect reality.

On the one hand, the 90-day rule invites immigration fraud. On the other, it minimizes genuine marital relationships and promotes shot gun weddings.

USCIS And The Visa Waiver Program

Earlier this year, recognizing the harshness of this policy, the U. S. Citizenship and Immigration Services (USCIS) announced:

All field offices have been instructed to adjudicate I-1485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217.

On the surface, this policy seems reasonable. After all, it appears to allow VWP immigrants who have married a U.S. citizen to move forward with their applications to become a lawful permanent resident, even if they have stayed past 90 days.

However, immigration law is rarely that simple.

When Is Adjustment of Status To Permanent Residency Open For Visa Waiver Program Entrants?

Deportation and removal orders in the VWP context are not subject to the same safeguards as deportation orders from immigration court.

Immigration and Customs Enforcement (ICE) officers are allowed to remove VWP overstays without a hearing.

Most significant, from my perspective as a San Bernadino immigration attorney, USCIS policy does not control ICE actions.

ICE is not mandated to “hold in abeyance” VWP deportations to allow immigrants time to process their green card applications.

This means, despite USCIS willingness to consider late filed applications, many potential permanent residents will never attend a USCIS permanent residency interview.

Like Alfonse.

With the help of Facebook, Alfonse, a 25 year old French citizen, had found his teenage friend, Matthieu. Matthieu was living in San Diego with his parents and two younger sisters. Alfonse made plans to visit them for his summer vacation.

After arriving in California, Alfonse was reacquainted with Matthieu’s family. Alfonse and one of Matthieu’s sisters, Gabrielle, now 21, became attracted to each other. They started going places together, with and without Matthieu.

Alfonse decided to extend his stay a little. He and Gabrielle did not want to be separated. They decided to get married. In the meantime, Alfonse started attending junior college and working part-time. The couple had a child. About six months later, Alfonse’s parents flew to California for the wedding.

Finally, they realized that Alfonse needed to straighten out his immigration situation. Although Alfonse’s 90 day visit had long passed, they did not think this could destroy their dreams. Without consulting an attorney, they decided to file immigration papers.

A few days later, Alfonse was stopped for driving a car with an invalid license tag. The police discovered his immigration papers had expired. They called immigration officials who took him immediately into custody.

Even though Gabrielle and her family explained that his immigration petition was pending, the ICE officers issued a removal order under the Visa Waiver Program. They declined to defer his removal to allow USCIS time to process his paperwork. They deported him back to France.

The Cold Heart Of ICE

As Alfonse’s experience shows, VWP immigrants cannot expect any sympathy from ICE officers if they overstay their visa . . . even when the officers’ actions are inconsistent with ICE Director John Morton’s recent memorandum on prosecutorial discretion.

Otherwise, several of the factors discussed in A New ICE Age: 19 Points Of Hope would have led to Alfonse’s release while his wife’s immigration petition was under review.

For instance:

  • The agency’s civil immigration priorities – not low priority deportation cases involving immigrants with no criminal records
  • The circumstances of the immigrant’s arrival in the United States and the manner of his or her entry
  • The immigrant’s person’s pursuit of education in the United States, with particular consideration given to those pursuing a college or advanced degree at a legitimate institution of higher education in the United States
  • The immigrant’s criminal history, including arrests, prior convictions, or outstanding arrest warrants
  • The person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud
  • Whether the immigrant poses a national security or public safety concern
  • Whether the immigrant has a U.S. citizen or permanent resident spouse, child, or parent
  • Whether the immigrant is likely to be granted temporary or permanent status or other relief from removal, including as the relative of a U.S. citizen or permanent resident

All of these factors weighed in Alfonse’s favor.

But when the government has a cold heart of ICE, there is no room for love.

By , Immigration Law, Policy, And Politics