(Note: ESTA Holders Who Want to Travel Home, But Who Have Been Unable to Leave On Time Should See Our Earlier Alert On this Topic)


By Deborah Hollander, Esq.


Non-immigrant visitors to the United States are only admitted for specific purposes or time periods.  If they simply overstay their departure date, they may begin accruing “unlawful presence” even if they are not ultimately departed.   This unlawful presence can significantly impact their ability to return to the United States and future applications for lawful status.


In the midst of the Corona Virus 19 crises, some visitors who expected to depart on time, and want to do so are running into difficulties in doing so.  Planes are being cancelled.  Travelers from the U.S. may be barred from entering into the next country they intended to travel to, or they may simply be quarantining themselves and do not want to pass through a crowded airport or fly.  One particular group which has struggled with this issue are visitor (VWP-ESTA) holders who came to this country for up to 90 days without a formal visa and just a passport stamp listing their departure date.


The VWP-ESTA program is designed for 90 day visits and allows visitors from designated countries (and the list often shifts) to enter the country without visa.  Holders are not entitled to automatic or lengthy extensions of their stay. They are not allowed to change to another non-immigrant visa once they are here.  There is however one exception, which relies partly on statutes, and partly on the government’s “discretion” to allow the spouses, children and parents of adult relatives of U.S. citizens to stay/




INA section 245(c) (4) renders aliens admitted under the Visa Waiver Program ineligible         to “adjust status” to another visa category or to that of a person admitted for long term permanent residence status (i.e., green card status).  Instead, such persons are generally expected to return to their home country, any apply through the U.S. embassy in that country for a visa, if they are eligible for one.

However,  a VWP-ESTA traveler who is the child, spouse or parent of an American citizen (if such citizen is at least 21 years of age) is allowed to file for long term resident status while in the U.S. on an ESTA passport.  Furthermore, they may be able to do so without leaving the U.S. while their application is pending, and even after they were originally scheduled to depart.

In a 2013 Policy Statement, the United States Immigration and Citizenship Services Agency stated that it would generally adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the United States under the Visa Waiver Program before referring them to ICE for removal “That includes cases where [the] Form I-485 was filed after the 90-day period of admission,” i.e., even after the traveler had overstayed.  However, there are three situations in which the USCIS will not adjudicate an adjustment of status application for a Visa Waiver Program entrant prior to referral to ICE for removal:

  • If ICE has already issued a removal order; or
  • The adjustment applicant is under investigation for, has been arrested for (without disposition), or has been convicted of an egregious public safety offense
  • There are fraud and/or national security issues that require resolution.


Typically, by “fraud” the government meant that it suspected the foreign national had always intended to stay in the U.S. and concealed that fact when applying for ESTA.  In the case of the COVD-19 virus’s sudden eruption, it should not be hard to argue changed circumstances.


Even where this option is available, it should be carefully considered. The U.S. citizen relative must agree to sponsor them.  A relative or relatives must agree to provide an affidavit of support (and have sufficient means to do so) to protect the government from having to utilize low income programs for the foreign national. Even with that affidavit, under current regulations, the applicant and family will still have to a demonstration that the foreign national is unlikely to become a public charge. (See our “Public Charge” Newsletter).


Other Alternatives:


If a VWP ESTA holder wants to stay in the U.S. and cannot take advantage of the immediate relative exception, or if USCIS revokes its policy, what are the options.  By overstaying the visa, the foreign national will accumulate a period of unlawful presence that can bar future entries into the U.S. There is also the risk of arrest, detention and removal by ICE.  However, ICE has stated it will, for the moment, be focusing on removing foreign nationals who have committed serious crimes or otherwise present a threat.  In some cases, in the future, the foreign national can apply for waiver of this bar. The future problems of re-entry and waiver may seem to be the least bad option.



Another option would be to apply for asylum. Some immigration attorneys are considering whether the COVD-19 itself can be a basis to justify such an application. While the application for asylum can interrupt removal proceedings, there are serious consequences, including stronger bars to making “frivolous” asylum claims.  The theory that a pandemic can justify asylum is unproven, and is likely to be resisted by the government. Therefore, any such attempt should be undertaken only after careful consultation with an experienced immigration attorney and full knowledge of the risks of failure.



The Visa Waiver Program, (VWP), is a reciprocal visa program. It permits citizens of 39 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. In return, those 39 countries must permit U.S. citizens and nationals to travel to their countries for a similar length of time without a visa for business or tourism purposes. Since 2016, in order to participate in the visa waiver program, the traveler must have an “e-passport”, issued under the Electronic System for Travel Authorization to use the VWP.  Hence these travelers are called VWP ESTA travelers.

© Sheak & Korzun, P.C. 2020