The case Bradley v. Holder, No.: 10-397, is currently pending before the United States Supreme Court to decide the issue of whether a non-citizen who enters the U.S. under the Visa Waiver Program, and who later files for adjustment of status to permanent residence, may renew their Form I-485 Application for Adjustment of Status before the Immigration Judge in removal proceedings after their application is denied by USCIS.
Under the Visa Waiver Program (VWP), nationals of designated countries may visit the United States without a visa for a period of up to 90 days. In order to enter under the VWP, the foreign national must waive away the right to (1) review of an immigration officer’s decision to refuse them entry into the United States and (2) to contest their removal before an Immigration Judge, unless they file an application for asylum.
However, the law also provides that a non-citizen who enters under the VWP may also apply for adjustment of status to permanent residence as the beneficiary of an immediate relative family petition. Immediate relative family petitions can be filed by a U.S. citizen on behalf of their spouse, child (son or daughter under the age of 21 and unmarried) and parent (U.S. citizen must be over the age of 21).
Bradley, a citizen of New Zealand, entered the United States in August of 1996 without a visa under the Visa Waiver Program. Bradley did not return to New Zealand after the 90-day period of authorized stay expired, and has been living in the United States for more than 14 years. In 2006, Bradley married a U.S. citizen who filed an I-130 immediate relative petition and I-485 Application for Adjustment of Status on his behalf. However, Bradley and his wife did not appear at their scheduled interview and both applications were denied. In October of 2008, Bradley was arrested by ICE officers and ordered removed because he had overstayed his Visa Waiver. After Bradley was ordered removed, his wife re-filed the I-130 petition which was approved in 2009. In March of 2010, USCIS denied Bradley’s I-485 application stating that he had failed to follow U.S. immigration laws.
The Department of Homeland Security (DHS) has submitted a brief outlining its argument that non-citizens who enter the United States under the Visa Waiver Program do not have the right to appear in removal proceedings before the Immigration Judge to contest their removal if they remain in the U.S. beyond their period of authorized stay. However, the brief also notes that DHS has the discretion to approve a Form I-485 Application filed at any time on behalf of a non-citizen who entered under the VWP if they are the immediate relative of a U.S. citizen. This policy marks a change from the Third Circuit’s decision which required the Form I-485 application to be filed within the 90-day validity period of the VWP.
Please click here for a Copy of DHS’s Brief in the U.S. Supreme Court Case Bradley v. Holder
