The Visa Waiver Program (“VWP”) permits citizens of 38 designated countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. In return, those 38 countries permit U.S. citizens and nationals to travel to their countries for a similar length of time without a visa for the same purposes.
Participating Countries
At present, the following countries participate in the VWP: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.
Adjustment of Status
In general, VWP entrants are not eligible for Adjustment of Status (“AOS”). The United States Code, however, carves out an exception for VWP entrants seeking to adjust their status on the basis of an immediate-relative petition. The term “immediate relative” includes the spouse of a U.S. citizen.
90-Day Rule Under Trump Administration
On September 1, 2017, the Trump administration amended the Department of State Foreign Affairs Manual (“AFM”) to establish a “90-day rule.” The so-called “90-day Rule” permits Department staff to presume that an alien made willful misrepresentations of his/her intention in seeking a visa if the alien violates or engages in conduct inconsistent with his/her nonimmigrant status within 90 days of visa application or entry.
For purposes of applying the “90-day rule,” conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:
Engaging in unauthorized employment;
Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
A nonimmigrant in B status marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
Catch-22: VWP Has a Maximum Authorized Stay of 90 Days
If you have questions regarding the Visa Waiver Program, contact Lally Immigration Services, LLC at (617) 870-1000 or by email to [email protected].
